ARGUMENTS 


THE  JUDGE-ADV  OCATE 


AND  OF 


MR.  R.  T.  MERRICK, 


STANLEY  TRIAL. 


NEW  YORK  : 

S.  W.  Green’s  Type-Setting  Machines.  18  Jacob  Street. 


AKGUMENTS 


OF 


THE  JUDGE-ADVOCATE 


AND  OF 


MR.  R.  T.  MERRICK, 

PRIVATE  COUNSEL  FOR  GEN.  HAZEN, 


IN  THE 

STANLEY  TRIAL. 


NEW  YORK  : 

S.  W.  Green’s  Type-Setting  Machines,  18  Jacob  Street. 

1879. 


u.  of  IU~  UB. 


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in  2017  with  funding  from 

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https://archive.org/details/argumentsofjudgeOOstan 


c-  4 


I deem  it  due  to  myself  to  lay  before  the  officers  of  the 
Army  and  the  public  the  arguments  of  Judge  Advocate 
Swain,  and  my  own  counsel,  Mr.  Richard  T.  Merrick,  sub- 
mitted to  the  General  Court  Martial,  which  was  convened  at 
Governor’s  Island  on  the  8th  of  April  last,  for  the  trial  of 
Gen.  D.  S.  Stanley  on  charges  preferred  by  me. 

W.  B.  Hazen. 


i 


ARGUMENT  OF  JUDGE  ADVOCATE  SWAINE  ON 
THE  ADMISSION  OF  EVIDENCE  IN  REBUTTAL. 

All  the  testimony  cf  the  defence  having  been  submitted, 
evidence  in  rebuttal  was  offered  by  the  prosecution.  The 
Judge  Advocate  being  met  by  an  objection  in  behalf  of  the 
accused,  he  read  to  the  court  the  following  argument  as  to  the 
scope  of  the  testimony  thus  to  be  offered  : 

Heretofore  the  court  has  decided  not  to  receive  testimony, 
contemplated  to  be  procured,  showing  the  general  good  char- 
acter of  the  prosecutor  for  gallantry  in  action,  his  truthfulness 
and  honesty.  These  traits  have  been  seriously  assailed  by  the 
defence,  both  in  argument  and  by  the  testimony  introduced 
by  it,  showing,  or  tending  to  show,  that  the  conduct  of  the 
prosecutor  at  Shiloh  and  Pickett’s  Mills  was  not  in  accordance 
with  duty  in  those  important  battles  ; that  he  claimed  or  as- 
sumed honors  that  he  was  not  entitled  to.  In  other  words, 
the  defence  claimed  at  the  outset  that  the  prosecutor  acted  in 
a cowardly  or  disgraceful  manner  at  those  places,  and  claimed 
trophies  by  capture  that  did  not  justly  belong  to  him,  and  as- 
serted that  the  truth  would  be  shown,  but  later  denied  that  it 
was  necessary  that  the  truth  should  be  shown,  and  asserted 
that  it  was  sufficient  to  show  only  that  Colonel  Stanley  believed 
the  charges  were  true.  Had  the  defence  in  the  beginning 
simply  confined  itself  to  the  claim  latterly  made,  and  aban- 


4 


doned  all  claims  as  to  ability  to  show  the  truth  of  the  libellous 
imputations  by  independent  evidence,  outside  of  the  beliefs  of 
the  accused,  the  struggles  of  the  defence  for  the  past  eight 
days  would  have  been  obviated,  and  the  fact  that  Colonel  Stan- 
ley believed  these  things  himself,  without  pretence  or  claim 
that  they  were  true,  would  have  been  admitted  by  the  Gov- 
ernment. It  is  now  too  late  for  the  accused  to  recede  from 
his  original  position,  after  heaping  upon  the  record  every  char- 
acter of  evidence  tending  to  prove  and  establish  the  imputa- 
tions contained  in  the  libellous  writings. 

The  case  being  thus  briefly  stated,  what  are  the  issues  grow- 
ing out  of  it  ? They  are  as  follows  : First — Writing  and  pub- 
lishing, and  aiding  and  abetting  in  the  writing  and  publishing, 
of  defamatory  writings.  Second — The  truth  of  the  defamatory 
imputations  contained  in  these  writings.  The  prosecution 
thus  far  has  offered  evidence  only  in  proof  of  the  publication 
and  aiding  and  abetting  in  the  publication  of  the  defamatory 
writings  set  out  in  the  several  specifications  to  the  charges, 
which,  in  connection  with  the  admissions  of  the  accused,  are  be- 
lieved to  be  now  fully  established  before  the  Court.  Upon  this 
issue  alone  the  prosecution  has  been  heard.  Upon  the  second 
branch  of  the  proposition  it  has  not  been  heard.  The  defence 
was  proclaimed  to  be  that  the  libellous  imputations  were  true. 
ISTear  the  close  of  the  defence,  being  fearful  possibly  that  the 
truth  was  not  established  to  the  satisfaction  of  the  Court,  coun- 
sel, speaking  for  the  accused,  says  : “ You  must  recollect  that 
it  is  no  part  of  the  accused’s  case  that  these  charges  were  true. 
We  propose  to  prove  that  these  charges  were  correct,  and 
uttered  by  General  Stanley  in  good  faith.”  And  how  could 
he  utter  in  good  faith  what  was  not  true  ? 

The  shifting  resorted  to  by  the  defence  in  this  case  is  aston- 
ishing, and  after  an  elaborate  and  painful  effort  on  the  part  of 
the  defence  to  prove  the  libellous  imputations,  it  now  seeks  to 
shut  the  mouth  of  the  prosecution  and  prevent  it  from  reply- 
ing ; and  that,  too,  contrary  to  the  principle  of  law  stated  by 
the  defence  itself,  that  in  cases  where  a prisoner  in  his  defence 
has  introduced  new  matter,  the  true  rule  is  that  the  prosecu- 
tion has  a right,  after  the  prisoner  has  gone  through  his  evi- 
dence, to  call  witnesses  for  the  purpose  of  disputing  any  part 


5 


of  the  prisoner’s  "case  which  could  not  have  been  anticipated 
by  the  prosecutor  in  the  first  instance.  That  is  the  rule  both 
in  civil  and  military  courts. 

The  entire  subject  of  the  defence  is  new  matter  not  adverted 
to  by  the  prosecution,  and  it  was  impossible,  even  had  it  been 
necessary,  in  the  first  instance,  for  the  prosecution  to  antici- 
pate by  its  evidence  what  character  of  proofs  the  defence 
would  adduce  tending  to  show  the  manner  in  which  the  con- 
duct of  the  defamed  party  was  disgraceful  at  Shiloh  and  Pick- 
ett’s Mills,  and  in  what  manner  he  stood  convicted  before 
those  who  heard  him  testify,  and  in  what  sense  he  was  pursu- 
ing a career  of  imposture.  The  Court  will  notice  the  fact 
that  the  testimony  of  the  defence  tending  to  show  these 
things  was  so  varied  that  ordinary  foresight  could  not  antici- 
pate it.  From  the  nature  of  the  case,  therefore,  the  end  of 
the  defence  could  not  be  anticipated  by  the  prosecution,  and 
the  case  of  the  defence  must  first  be  developed  by  it  before  it 
could  be  met  by  the  other  side. 

This  is  in  strict  accordance  with  the  rules  of  law  quoted  in 
Greenleaf,  in  his  work  on  Evidence,  volume  2,  section  429, 
with  reference  to  this  question.  He  states  the  rule  briefly  as 
follows  : u The  usual  course  is  to  prove  a libel  and  leave  it  to 
the  defence  to  make  out  his  justification,  after  which  the 
plaintiff  offers  all  his  evidence  rebutting  the  defence.”  After 
hearing  the  prosecution  in  reply  to  the  new  matter  set  up  by 
the  defence,  the  court  can  base  no  judgment  thereon  ; and  all 
its  labor  since  the  defence  began  has  been  simply  a vain  task, 
calculated  only  to  further  stigmatize  the  object  of  the  defam- 
atory writings  by  adding  thereto  the  injurious  statements,  im- 
pressions, and  opinions  contained  in  the  evidence  of  the  de- 
fence, published  and  spread  broadcast  in  the  public  prints  of 
the  country. 

In  reply  to  the  new  matter  presented  by  the  defence,  there- 
fore, the  prosecution  proposes  to  introduce  evidence  showing 
that  General  Hazen  at  Shiloh  commanded  his  brigade  from 
daylight  until  12  meridian,  throughout  the  entire  charge  made 
at  that  time,  during  which  all  its  casualties  occurred,  amount- 
ing to  one  fifth  of  the  entire  casualties  of  Buell’s  army,  while 
it  comprised  but  one  tenth  of  its  number,  and  that  this  brigade 


6 


was  then  scattered,  many  of  its  members  lost  in  a thick  wood 
and  dense  undergrowth,  among  whom  was  its  commander  ; 
that  he  was  then  absent  until  he  joined  it  in  the  afternoon  be- 
tween three  and  five  o’clock  ; that  his  absence  was  not  im- 
proper ; that  there  was  no  concealment  about  it  ; that  he  at 
once  reported  and  explained  it  himself  to  both  General  Nelson 
and  General  Buell,  after  which  they  commended  him  in  high 
and  flattering  terms  in  the  battle  ; that  at  Stone  Biver  his 
brigade  and  other  troops  sent  by  his  division  commander  to 
him  and  commanded  by  himself  did  tight  and  hold  from  ten 
a.  m.  , just  before  the  fighting  reached  that  point,  until  withdrawn 
at  four  a.m.  next  morning,  the  ground  where  the  monument 
stands,  and  all  the  front  portion  of  the  Bound  Forest ; that  no 
other  general  officer  did  personally  command  that  portion  of  the 
line  for  any  of  the  period  of  the  great  battle  ; and  that  in  its 
accomplishment  and  great  results  it  stands  as  one  of  the 
greatest  achievements  of  the  war  of  the  rebellion  ; that  at 
Mission  Bidge  every  word  in  the  Lossing  letter  will  be 
fully  proven ; that  his  command  did  reach  the  crest  of  the 
ridge  while  at  least  a large  portion  of  General  Sheridan’s 
troops  were  but  half  way  up,  and  that  the  guns  were  legit- 
imate captures — but  whether  so  or  not,  General  Hazen  had 
no  part  in  collecting  them,  either  directly  or  indirectly  ; that  at 
Pickett’s  Mills  Hazen  was  with  the  front  line  and  in  his  proper 
place,  doing  his  duty  in  an  exceptionally  proper  manner  un- 
til his  brigade  fell  back  ; that  the  series  of  letters  written  to 
and  received  from  General  Garfield  will  show  clearly  that 
General  Hazen  did  not  volunteer  to  testify  about  post-trader- 
ships,  but  upon  an  entirely  different  subject  ; that  he  substan- 
tially so  stated  before  being  told,  and  was  assured  by,  as  he 
supposed,  competent  authority  that  his  name  was  not  to  be 
made  public  in  that  connection,  and  that  his  action  was  en- 
tirely proper  ; that  of  the  Fort  Bice  difficulty,  General  Stan- 
ley, by  telling  but  a part  of  the  affair,  suppressing  his  retrac- 
tion, has  created  an  impression  which  a full  knowledge  of  the 
facts  would  not  in  any  manner  support  ; that  by  a voluntary 
agreement  made  with  General  Hazen  at  the  time,  and  reiterated 
and  confirmed  by  a letter  written  without  condition  at  Fort 
Sully  in  March,  1873,  subsequent  to  the  Opdycke  letter, 


7 


General  Stanley  agreed  to  cease  assailing  and  criticising  Gen- 
eral Hazen,  which  agreement  he  has  been  engaged  in  violating 
ever  since  ; that  it  can  he  shown  conclusively  that  General 
Stanley,  by  constant  repetition  and  circulation,  is  the  prime 
author  of  the  stories  he  said  were  true  (but  later  says  that  he 
only  believes  them  to  be  true)  and  of  common  report. 

Ample  and  complete  testimony  to  establish  the  foregoing 
facts  is  now  present.  Every  principle  of  justice  and  right  de- 
mands that  the  prosecution  ought  to  be  permitted  to  introduce 
the  evidence  just  stated  in  rebuttal  in  the  case  of  the  defence. 
The  determination  of  the  truth  of  grounds  of  belief,  of  the 
truth  of  the  imputations  set  up  in  justification  in  this  case,  is  a 
question  of  fact,  in  the  ascertainment  of  which  the  parties 
affirming  as  well  as  the  parties  denying  the  existence  of  the 
same  ought  to  be  heard,  and  especially  is  this  so  since  the 
court  has  undertaken  to  enter  into  an  investigation  at  all. 

It  has  been  insisted  that  the  person  injured  by  the  libel  may 
seek  redress  through  a court  of  inquiry.  What  mode  has  he 
to  obtain  redress  after  the  damaging  testimony  presented  to 
this  court  and  published  to  the  reading  world  ? Could  a court 
of  inquiry  redress  that  ? Does  this  court  want  its  proceedings 
reviewed  by  a court  of  inquiry  ? The  very  statement  of  the 
case  shows  the  utter  absurdity  of  the  ^claims  of  the  defence. 
Now  while  in  the  first  instance  a court  of  inquiry  might  have 
been  proper  had  General  Stanley  confined  his  charges  to  official 
channels  before  his  publishing  them  to  the  world,  the  case  now 
calls  for  the  operation  of  another  branch  of  the  machinery  of 
the  administration  of  remedial  justice  in  the  Army. 

An  extended  reply  was  made  by  counsel  for  the  accused, 
after  which  the  court  deliberated  with  closed  doors  upon  the 
points  raised.  On  the  reopening  of  the  doors,  the  following 
decision  was  announced  : u For  the  purpose  of  correcting 
statements  of  incidents  or  facts  in  the  testimony  presented  by 
the  accused,  competent  testimony  which  might  have  been  ac- 
cessible to  accused  may  be  introduced,  provided  it  is  confined 
strictly  to  the  matters  alleged  in  the  specifications.  ’ 5 


ARGUMENT  OF  THE  JUDGE  ADVOCATE. 


Mr.  President  and  Gentlemen  of  the  Court : 

Colonel  Stanley  is  charged  with,  first,  conduct  unbecoming 
an  officer  and  a gentleman,  supported  by  twelve  specifications, 
as  follows  : 

The  first  and  second  specifications  allege  that  Colonel’Stan- 
ley  wrote  and  addressed  to  General  Hazen  the  letter  therein 
specified.  This  letter  clearly  on  the  face  of  it  imputes  toward 
Colonel  Hazen  what  is  divided  and  separately  alleged  in  the 
third,  fourth,  and  fifth  specifications  to  this  charge — that  Col- 
onel Hazen  was  guilty  of  perjury  while  testifying  before  the 
Senate  sitting  as  a court  of  impeachment  in  the  trial  of  the 
Hon.  W.  W.  Belknap  ; that  his  conduct  was  disgraceful  at 
the  battle  of  Shiloh,  and  that  he  was  pursuing  the  career  of  an 
impostor.  The  sixth  specification  sets  forth  the  series  of  charges 
peferred  by  General  Stanley  against  General  Hazen. 

The  seventh,  eighth,  ninth,  tenth,  and  eleventh  specifica- 
tions embody  the  same  letter,  or  parts  thereof,  with  the 
additional  allegations  in  specfications  seventh,  eighth,  ninth, 
and  tenth  that  he  caused  to  be  published,  and  aided  and 
abetted  in  publishing  the  said  letter  in  the  St.  Paul 
Pioneer  Press , and  in  the  eleventh  specification  that  he  fur- 
nished for  publication  in  said  newspaper  the  same  letter. 
This  letter,  however,  as  published  in  the  St.  Paul  Pioneer 
Press , varies  from  the  letter  addressed  to  General  Hazen  at 
Vienna  only  in  the  addition  of  the  words,  “ and  your  shame- 
ful exit  from  your  command  at  Fort  Buford.” 

The  twelfth  specification  alleges  that  General  Stanley  caused 
and  allowed  to  be  published  in  the  New  York  Times  the  arti- 
cle in  the  issue  of  that  paper  of  the  14th  of  March  wherein 
Colonel  Hazen  is  directly  accused  of  perjury  and  cowardice. 

The  second  charge  is  conduct  to  the  prejudice  of  good  order 
and  military  discipline,  supported  by  three  specifications  set- 


9 


ting  forth  that  he  furnished  for  publication  and  procured  and 
allowed  to  be  published  in  the  St.  Paul  Pioneer  Press  the  let- 
ter specified  in  the  eleventh  specification,  first  charge,  and  the 
article  quoted  from  the  Hew  York  Times , set  out  in  the 
twelfth  specification,  first  charge.  The  defamatory  writings 
were  thus  elaborately  extended  to  meet  every  possible  view  in 
which  the  court  might  consider  them,  and  for  convenience  in 
its  findings.  It  will  be  seen  that  each  specification  to  the 
charge  describes  an  offence  known  in  the  law  as  a libel,  the 
punishment  for  which  in  every  State  of  the  Union  is  fine  and 
imprisonment. 

Time  and  again  the  defence  in  this  case  has  asserted  that  the 
offences  under  trial  are  not  libels,  but  were  simply  the  unde- 
fined military  charge  of  conduct  unbecoming  an  officer  and  a 
gentleman  ; that  there  can  be  no  such  offence  as  libel  before  a 
military  court. 

Argument  is  hardly  necessary  to  show  the  error  of  these 
views.  The  61st  Article  of  War  provides  that  “ Any  officer 
who  is  convicted  of  conduct  unbecoming  an  officer  and  a gen- 
tleman shall  be  dismissed  from  the  service. 5 ’ This  article  of 
itself  describes  no  offence,  but  only  the  penalty  that  shall  be  ad- 
judged upon  conviction  of  conduct  that  shall  be  found  by  the 
court  unbecoming  the  officer  and  the  gentleman.  But  what 
combination  of  facts  shall  constitute  such  conduct  on  the  part 
of  an  officer  ? Plainly  it  must  be  something  which  the  law 
denounces  as  wrongful  or  criminal,  which  in  the  judgment  of 
the  court,  when  committed  by  an  officer,  would  render  him 
an  unfit  person  to  retain  a commission  : hence  the  everyday 
practice  under  this  article  is  that  it  must  be  supported  by  a 
specification  or  specifications  showing  the  commission  of  some 
crime  or  offence  by  the  offending  officer. 

The  article  under  which  the  second  charge  is  laid  describes 
no  offence,  and  we  must  therefore  resort  to  the  ordinary  rules 
of  law  in  the  ascertainment  of  the  conduct  contemplated 
by  its  provisions.  Clearly  a libel  will  satisfy  the  require- 
ments of  either  charge,  being  “ any  writings,  pictures,  or 
other  signs  which  immediately  tend  to  injure  the  character 
of  an  individual  or  to  occasion  mischief  to  the  public.”  It 
must  be  with  reference  to  this  offence  that  O’Brien  in  his 


10 


work  on  Military  Law,  at  page  110,  uses  the  following  lan- 
guage : “ Is  an  officer  injured  or  insulted,  the  commanding 
officer,  the  guardian  of  his  honor,  will  require  the  offender  to 
make  a prompt  and  ample  apology.  Is  the  offence  more  seri- 
ous, a court-martial  under  the  99th  Article  of  War  will,  in 
addition  to  such  apology,  vindicate  the  honor  of  the  service 
by  its  censure  and  punishment.  Is  the  injury  of  such  aggra- 
vated nature  as  to  show  the  offender  lost  to  all  proper  f eelings, 
a court-martial  under  the  83d  Article  will  ignominiously  ex- 
pel him  from  a society  with  which  he  is  no  longer  fit  to  asso- 
ciate, as  having  lost  the  characteristics  of  an  officer  and  a gen- 
tleman.” This  language  aptly  applies  in  this  case.  An 
officer  is  grievously  injured  and  insulted  by  the  libellous  impu- 
tations of  the  accused.  He  wholly  declined  to  offer  an  apol- 
ogy for  the  wrongs  and  injuries  done  when  invited  to  do  so, 
but  confidently  asserts  that  his  libels  are  true  and  that  he  be- 
lieved them  true.  If  then  the  court  should  believe  that  the 
libels  were  not  true,  and,  therefore,  the  accused  not  having  any 
good  grounds  to  so  believe  them,  the  court  should  adopt  the 
doctrine  so  plainly  enunciated  by  O’Brein  as  the  correct  prin- 
ciple of  law  in  the  determination  of  this  case. 

In  his  plea  to  the  first  and  second  specifications,  first  charge, 
General  Stanley  admits  the  writing  and  addressing  of  the  letter 
to  General  Hazen  as  alleged.  In  his  letter  in  evidence  (Rec- 
ord, pp.  66,  67,  68,  69,  and  70)  he  says  : “I  have  not  a copy 
of  my  letter  at  present  with  me,  but  from  recollection  I accept 
this  as  my  letter.  The  same  letter,  or  quotations,  from  it  repeat- 
ed thirteen  times  in  the  specifications  following,  1 accept  and 
acknowledge  the  same  in  all  the  specifications.  In  explanation 
of  that  letter  I will  say  I have  in  good  faith  preferred  charges 
against  General  Hazen,  and  he  escaped  trial  under  those 
charges.  I wrote  the  letter  to  upbraid  him,  and,  as  the  letter 
says,  to  warn  him.  I did  incautiously  allow  certain  persons  to 
see  the  letter  and  take  a copy,  and  perhaps  I furnished  a copy. 
At  any  rate  I was  responsible  that  the  letter  got  into  the  news- 
papers.” Upon  the  introduction  of  this  letter,  however,  Col- 
onel Stanley  denied  that  the  charges  referred  to  therein  were 
the  same  here  on  trial  (Record,  p.  70),  but  he  afterwards  ad- 
mitted that  the  charges  contained  in  Exhibit  A were  the 


11 


charges  referred  to  in  that  letter  (Record,  pp.  86,  94,  101, 118). 
In  the  charges  contained  in  this  exhibit  it  will  be  seen  that  this 
letter  is  set  out  with  all  the  allegations  of  the  manner  and  forms 
of  publication  that  are  contained  in  the  charges  now  under 
trial.  As  to  the  publication  of  the  defamatory  article  in  the 
Hew  York  Times  we  have  the  testimony  of  Mr.  Hosmer,  who 
testifies  that  he  was  sent  to  General  Stanley  in  his  capacity  as 
reporter  for  that  paper  ; that  General  Stanley  knew  he  was 
such,  and  deliberately  gave  him  for  publication  (the  reporter 
taking  the  same  in  longhand  in  liis  presence),  the  defamatory 
statements  and  imputations  contained  in  that  article.  This 
witness  also  testified  that  Stanley  used  the  very  language  con- 
tained in  that  article — namely,  ‘ 6 He  will  meet  charges  of  per- 
jury and  cowardice  which  I have  made  to  his  face,  to  the  news- 
papers, and  in  official  statements.”  This  record  shows  that 
all  these  things  have  been  done,  and  an  extract  from  the  St. 
Paul  Pioneer  Press  in  evidence  shows  that  his  libellous  im- 
putations at  least  got  into  that  paper,  and  General  Stanley  so 
admitted.  But  in  the  utterance  of  the  defamatory  charges  he 
did  not  rest  with  giving  them  publicity  in  official  statements 
and  to  the  newspapers,  as  he  told  the  reporter,  but  he  circu- 
lated and  spread  them  orally  upon  nearly  every  conceivable 
occasion.  He  informed  Colonel  McCook  that  he  told  General 
Hazen  at  General  Crittenden’s  table  at  Fort  Rice  that  he  was 
not  only  a coward  but  a liar  (Record,  p.  231).  General  Wood 
also  testifies  that  General  Stanley  informed  him  that  he  called 
General  Hazen  a liar  and  a coward — that  he  denounced  Gen- 
eral Hazen  as  a liar  and  a coward,  and  witness  don’t  know 
but  he  added  the  word  “ impostor”  (Record,  pp.  280,  281). 
Steele  testified  that  Stanley  said  that  he  had  a difficulty  with 
General  Hazen  at  some  point  in  the  West,  and  that  he  told 
General  Hazen  he  was  a liar  and  a coward,  and  that  he  ran 
away  from  his  command  at  Shiloh  (Record,  p.  456).  General 
Belknap  testifies  that  copies  of  the  libellous  writings  were  sent 
to  him  by  General  Stanley,  and  that  he  distributed  the  same 
to  certain  officers  in  the  city  of  Washington  (Record,  pp.  560, 
565,  566,  567,  573).  General  Stanley  claims  that  all  this  was 
done  in  good  faith  and  without  malice,  because  he  believed 
that  the  libels  were  true. 


U.  OF  ILL  UB, 


12 


The  malice  of  General  Stanley  in  this  case  consists  in  his  in- 
tention to  effect  the  particular  mischief  shown  by  the  writings, 
which  by  their  very  terms  tend  to  scandalize,  degrade,  and  in- 
jure General  Hazen  ; and  where  an  act  is  voluntary,  injurious 
in  its  tendency,  and  illegal  in  its  quality,  it  would  be  contrary 
to  all  legal  principle  and  analogy  to  justify  or  excuse  himself 
that  he  offended  against  the  law  with  pure  and  upright  mo- 
tives. Malice  in  this  case,  from  the  nature  of  the  writings, 
is  simply  an  inference  of  law  which  General  Stanley  might 
have  explained  had  he  so  desired.  He  did  not  do  so,  how- 
ever, but  the  testimony  of  his  own  witnesses  shows  conclusively 
that  his  temper  and  disposition  indicated  toward  General  Hazen 
spite  and  ill-will  in  the  largest  sense  of  these  terms.  Except 
as  to  the  statements  of  counsel,  the  malice  shown  by  the 
writings  and  by  the  evidence  remains  wholly  unexplained. 

The  defence  rested  solely  on  the  ground  that  the  libels  were 
true,  and  that  General  Stanley  in  good  faith  believed  them  to 
be  true,  and  to  show  the  truth  of  the  libels  he  introduced  tes- 
timony tending  to  show  that  General  Hazen  ran  away  from 
his  command  or  voluntarily  and  in  violation  of  duty  separated 
himself  therefrom  at  the  battle  of  Shiloh  ; that  he  did  the 
same  at  Pickett’s  Mills  ; that  he  caused  to  be  erected  on  the 
held  of  Stone  River  a monument  to  commemorate  the  achieve- 
ments of  his  brigade  at  a point  in  the  field  on  which  his  brigade 
was  not  engaged  with  the  enemy  and  suffered  no  losses  ; that 
he  claimed  trophies  by  capture  at  the  storming  of  Missionary 
Ridge,  which  justly  belonged  to  the  division  of  General  Sher- 
idan ; that  he  was  guilty  of  either  perjury  or  falsehood  in  his 
testimony  before  the  Senate  of  the  United  States,  sitting  as  a 
court  of  impeachment  in  the  Belknap  trial, — respecting  the 
reasons  he  assigned  for  the  issuance  of  a subpoena  to  appear 
and  testify  before  the  Military  Committee  of  the  House  of 
Representatives  in  1872  ; that  he  falsely  accused  the  Subsist- 
ence Department  of  opposing  the  execution  of  the  law  of 
1866,  respecting  the  furnishing  of  sutlers’  supplies  by  that  de- 
partment ; that  the  Commissary-General  interposed  a barrier 
to  the  execution  of  that  law. 

As  tending  to  show  the  truth  of  his  accusations  of  miscon- 
duct at  Shiloh,  he  introduced  the  testimony  of  a number  of 


13 


witnesses  : Colonel  Crittenden  testified  tliat  he  was  informed 
that  General  Hazen  was  back  at  the  landing  while  the  battle  was 
going  on,  and  that  he  heard  a great  many  insinuations  that 
General  Hazen  was  not  in  his  proper  place  (p.  110),  bnt  not 
that  he  ran  away  (p.  112)  ; Colonel  McCook  testified  that  he 
saw  Colonel  Hazen  on  foot,  and  that  he  informed  him  that  he 
had  lost  his  brigade  ; General  Wood  that  he  saw  him  near  the 
bank  of  the  river  (pp.  240,  266).  Dr.  Murray  says  he  saw 
General  Hazen  a mile  from  the  river  at  Shiloh  ; that  he  said 
his  brigade  was  cut  to  pieces,  and  exclaimed  that  he  was  a ruin- 
ed man  ; that  “ they  are  all  scattered  and  I don’t  know  where 
they  are”  (pp.  344,  345),  but  at  this  time  the  firing  did  not  in- 
dicate a general  engagement  (p.  346). 

There  is  no  doubt  but  that  General  Hazen  became  separated 
from  his  brigade  on  this  day,  and  the  prosecution  admitted  that 
fact.  The  only  point  in  this  connection  is,  did  he  leave  in  such 
manner  as  to  render  his  conduct  either  wrongful  or  disgraceful  ? 
Many  of  the  witnesses  testify  that,  from  early  morning  until 
about  noon,  General  Hazen  was  present  in  command  of  his  bri- 
gade ; that  up  to  this  point  the  brigade  maintained  its  part  with 
bravery  and  gallantry  in  its  advance  upon  the  positions  of  the 
enemy,  but  suddenly  meeting  a superior  force  of  the  enemy  in 
its  front  and  flank,  it  broke  and  fled  in  disorder  ; that  parts  of 
the  country,  if  not  most  of  it,  were  dense  thickets,  and  that  in 
this  condition  of  things  General  Hazen  became  unavoidably 
lost  in  the  woods,  and  was  compelled  to  go  to  the  landing  in 
order  to  ascertain  the  position  of  his  brigade.  But  the  man- 
ner in  which  he  became  separated  from  his  brigade  is  best 
given  in  his  own  testimony,  * which  is  contradicted  by  none, 
and  is  corroborated  by  at  least  two  of  the  witnesses.  He 
says  : “ I went  forward  with  the  command  in  its  charge  and 
during  its  fight,  and  when  it  was  repulsed  I moved  back  with 
it,  endeavoring  to  rally  the  men  as  best  I could  for  about  half 
a mile,  when  I came  to  a field  where  most  of  the  men  got  over 
and  crossed.  Lieutenant  Beebe,  my  aide,  who  was  by  my  side, 
leaped  that  fence,  where  it  was  partially  broken  down,  with 
his  horse  ; I dare  not  try  it,  fearing  lie  would  fall  from  his  lame- 
ness [the  witness  had  previously  testified,  u It  was  the  first  bat- 
tle I had  been  in,  and  I found  my  horses  entirely  unmanageable 


14 


under  fire  ; I had  to  send  them  to  the  rear  and  dismount  a 
bugler  and  take  his  horse,  which  proved  to  he  a very  unfit 
horse  for  the  service  ”].  I turned  to  the  left  and  passed  around 
to  the  left  of  the  field.  There  were  many  men  of  the  com- 
mand who  did  the  same.  In  doing  that  I passed  into  a very 
dense  thick  wood,  just  to  the  left  of  it,  and  did  not  again  get 
the  proper  direction.  After  being  in  the  wood  for  some  time 
with  many  of  the  men  of  my  command,  I became  entirely 
bewildered  in  regard  to  the  direction.  There  was  no  firing  on 
this  part  of  the  line  at  that  time  ; there  was  firing  to  the  left 
and  firing  to  the  right.  I mistook  the  firing  a,t  the  right  for 
the  firing  of  my  own  command,  and  moved  in  that  direction 
until  I found  General  Rousseau’s  brigade,  at  some  point  on  the 
map,  I can  hardly  tell  where,  and  I found  there  General  King, 
who  was  then  Major  King — John  H.  King.  He  told  me 
where  he  thought  the  brigade  was.  I was  then  in  company 
with  Captain  Opdycke,  now  General  Opdycke.  I endeavored 
to  get  back  to  where  I supposed  the  brigade  had  been,  but 
became  bewildered  in  the  woods  as  I had  been  before.  I then 
thought  it  best  to  take  one  of  the  roads  ; there  were  a great 
many  roads  there,  the  whole  country  was  filled  with  roads  ; 
they  all  converged  in  one  direction  to  the  landing  ; there 
were  no  crossroads  ; I supposed  the  landing  was  very  near  ; I 
thought  I would  get  on  one  of  these  roads  to  the  landing  and 
get  on  the  Hamburg  road,  the  only  one  I was  familiar  with  at 
the  time.  ...  In  moving  back,  in  place  of  being  near  the 
landing,  I was  a long  ways  from  the  landing. 

“ I met  Dr.  Murray  when  I had  reached  perhaps  half  the  dis- 
tance or  two  thirds  of  it.  . . . The  first  people  I met  at  the  land- 
ing were  the  servants  of  my  own  brigade,  and  they  offered  me 
something  to  eat.  I had  eaten  nothing  for  over  24  hours,  and 
I was  very  much  exhausted  and  broken  down.  ...  I was  in  all 
perhaps  twenty  minutes  or  half  an  hour.  I then  mounted  my 
horse,  and  moved  out  and  joined  my  brigade.  I found  Gen- 
eral Kelson  and  reported  every  fact.”  The  witness  is  con- 
firmed in  this  statement  by  the  witnesses  Opdycke  and  Beebe 
— Opdycke  as  to  the  circumstance  of  being  lost  in  the  wood 
and  inability  to  find  the  brigade  or  its  whereabouts  at  the 


15 


time  ; and  Mr.  Beebe  as  to  the  particular  manner  in  which 
General  Hazen  became  separated  from  his  brigade. 

The  testimony  of  General  Opdycke,  and  of  Messrs.  Beebe 
and  Kimberly,  who  were  attending  General  Hazen  at  the 
time,  should  be  received  with  the  highest  consideration. 
These  gentlemen  testify  that  the  conduct  of  General  Hazen  in 
handling  his  brigade  from  early  morning  up  to  and  including 
the  time  of  the  charge,  when  the  brigade  became  scattered  and 
broken,  was  intrepid,  cool,  and  courageous.  These  traits, 
however,  can  hardly  be  said  to  be  assailed  by  the  defence  at 
Shiloh,  but  it  confined  itself  to  showing  that  General  Hazen 
was  seen  away  from  the  presence  of  the  brigade  merely.  How 
as  to  the  probable  time  the  charge  took  place,  nearly  all  the 
witnesses  think  that  it  took  place  in  the  forenoon,  and  that  the 
brigade  became  scattered  about  noon,  or  shortly  after.  Colonel 
McCook  says  that  he  saw  General  Hazen  in  rear  of  his  di- 
vision at  twelve  o’clock  m.,  about  two  and  a half  or  three  miles 
from  the  landing,  inquiring  where  he  could  find  his  brigade  ; 
General  Wood,  that  he  saw  him  at  the  landing  about  one 
o’clock  ; Dr.  Murray  and  Mr.  Bush,  about  noon.  General 
Opdycke  testifies  that  the  charge  was  made  about  eleven 
o’clock,  General  Hazen  being  present  on  the  line  at  the  time, 
and  broke  the  enemy’s  line  all  to  pieces  ; that  some  time 
after  the  brigade  in  its  turn  was  assailed  by  the  enemy  and 
driven  back  in  disorder  and  in  a complete  state  of  disorgani- 
zation. Kimberly  says  that  General  Hazen  was  with  his 
brigade  till  it  broke,  or  nearly  one  o’clock,  and  Beebe  says  the 
same  thing.  There  is  no  doubt  but  that  General  Hazen  re- 
mained with  his  brigade  during  the  entire  portion  of  the  day 
in  which  it  was  in  a condition  to  fight,  and  that  his  separation 
therefrom,  as  shown,  was  purely  an  incident  not  at  all  affecting 
his  courage  or  his  devotion  to  duty,  and  this  incident  is  cer- 
tainly no  basis  justifying  the  assertion  that  his  conduct  was 
otherwise  than  correct  and  proper.  Hone  of  the  witnesses 
testifying  to  their  opinions  and  impressions,  or  to  the  opinions 
and  impressions  of  others,  admitted  in  evidence,  say  that  the 
conduct  of  General  Hazen  at  v Shiloh  was  disgraceful  or  even 
wrongful,  or  that  they  heard  it  so  criticised,  but  the  mere 
incident  only  of  his  being  at  the  landing  was  deemed  an  “ un- 


16 


favorable”  incident,  or,  as  the  witness  Whitaker  said,  “ Yon 
cannot  keep  soldiers  from  talking.  ’ ’ Corroborating  the  testi- 
mony of  General  Hazen,  Colonel  Crittenden  testified  that 
General  Hazen’s  division  commander  was  fnlly  informed  of 
the  incident,  and,  after  being  fnlly  advised,  speaks  in  glowing 
terms  of  the  conduct  of  Hazen  at  Shiloh.  How  this  being 
so,  was  it  necessary  that  General  Hazen  should  enter  into  an 
explanation  with  his  inferiors  in  rank,  or  with  prurient  gos- 
sipers,  tale-bearers,  and  scandal-mongers  ? 

The  alleged  cowardice  of  General  Hazen  at  Pickett’s  Mills 
is  attempted  to  be  shown  by  General  Wood  and  Mr.  Bowman  : 
General  Wood  testifies  that  having  had  occasion  to  send  for 
General  Hazen,  in  reporting  to  him  he  approached  from  the 
rear  ; Colonel  Bowman  that  he  saw  General  Hazen  while  re- 
tiring with  his  regiment  passing  between  him  and  a large  tree, 
but  the  witness  is  not  to  be  understood  as  saying  that  Colonel 
Hazen  wras  hiding  behind  the  tree  (p.  305).  General  Wood 
says  that  Colonel  Hazen  might  have  believed  with  reason  that 
he  (Wood)  was  farther  to  the  rear,  and  therefore,  in  looking 
for  him  under  this  belief,  would  naturally  approach  him  in 
his  advanced  position  from  that  direction.  I do  not  attach  any 
importance  to  the  testimony  of  Colonel  Bowman  as  showing 
or  tending  to  show  any  improper  conduct  on  the  part  of  Col- 
onel Hazen  at  Pickett’s  Mills  ; nor  to  that  of  General  Wood  ; 
for  to  draw  an  injurious  inference  therefrom  against  General 
Hazen  could  only  redound  against  General  Wood  himself,  on 
the  ground  that  if  General  W ood  had  any  doubts  as  to  whether 
General  Hazen  was  properly  exercising  the  direction  and  com- 
mand of  his  brigade  at  the  time,  he  could  easily  have  ascer- 
tained the  fact  from  the  staff  officer  who  conveyed  the  mes- 
sage to  General  Hazen,  and  from  others,  and  inform  himself 
fully  on  the  subject,  as  it  was  his  duty  to  do.  It  is  plain  that 
General  Wood  did  not  then  believe,  nor  does  he  now  believe, 
but  that  General  Hazen  did  perform  the  part  of  a 'brave, 
courageous,  and  gallant  commander,  and  General  Wood  so 
testifies  (p.  274)  ; and  the  losses  of  his  brigade  show  it.  This  is 
the  entire  testimony  of  the  defence  justifying  the  libellous 
imputation  of  cowardice  at  Pickett’s  Mills,  and  while  it  does 
not  show  the  truth  nor  even  the  semblance  of  the  truth  of  the 


17 


slightest  impropriety  on  the  part  of  General  Hazen  at  that 
battle,  let  alone  the  disgraceful  crime  imputed,  and  therefore 
no  testimony  in  rebuttal  necessary,  still,  as  the  conduct  of 
General  Hazen  in  this  action  was  attempted  to  be  untruthfully 
and  unreasonably  assailed  by  the  defence  by  innuendo  and 
argument  on  its  part,  it  is  proper  to  examine  the  testimony  of  a 
witness  who  was  at  the  time  a member  of  the  staff  of  General 
Hazen.  I refer  to  the  testimony  of  Mr.  Beebe  (Record,  p. 
820),  who  testified  that  he  was  aide  de-camp  to  General  Hazen 
in  that  action  ; that  during  the  assault  upon  the  enemy’s  works 
General  Hazen  was  up  along  the  line  of  his  brigade,  and  from 
fifty  to  seventy -five  yards  in  its  rear,  where,  so  far  as  the  na- 
ture of  the  ground  would  permit,  he  could  see  the  brigade  or 
the  larger  part  of  it  ; that  a battery  of  the  enemy  on  the  right 
having  opened  ^n  enfilading  fire,  the  brigade  fell  back  ; that 
General  Hazen  accompanied  the  command  and  re-formed  it 
about  half  a mile  in  rear  of  the  enemy’s  works  ; that  he  was 
with  General  Hazen  or  near  him  all  the  time,  Hazen  being 
part  of  the  time  mounted,  and  part  of  the  time  on  foot,  and 
never  saw  him  take  shelter  behind  a tree  or  anything  else. 
Witness  did  not  see  General  Wood,  nor  know  the  point  of 
the  field  he  occupied  (Record,  pp.  822,  823,  824).  Further 
evidence  in  corroboration  of  this  witness  was  offered,  but  the 
court  decided  not  to  hear  any  more  testimony  on  this  subject. 
The  conclusion  is  therefore  irresistible  that  the  conduct  of 
General  Hazen  at  Pickett’s  Mills  was  that  of  an  energetic  and 
gallant  officer. 

General  Wood  is  the  only  witness  who  testifies  respecting 
the  claims  of  the  defence  that  the  monument  erected  at  Stone 
River  in  commemoration  of  the  valor  and  deeds  of  Hazen ’s 
brigade  in  that  action  is  not  erected  on  the  position  held  by 
that  brigade  during  the  battle.  General  Wood  testified  sub- 
stantially that  he  did  not  believe  that  Hazen ’s  brigade  fought 
on  the  present  site  of  the  monument ; that  he  believes  this  in 
Hew  of  the  statement  contained  in  the  report  of  General 
Rosecrans,  that  witness’s  division  held  the  ground  on  which 
this  monument  is  erected  ; his  language  is,  “ I believe  I mav 
state  that  General  Rosencranz  in  his  official  report  states  that 
my  division  occupied  at  nightfall  of  the  31st  the  position  it 

9 


18 


held  on  the  morning  of  the  31st.  That  being  so,  General 
Hazen’s  brigade  could  not  have  had  any  men  killed  where 
that  monument  stands.”  And  in  answer  to  the  question, 
“ Do  you  say  positively  that  none  of  General  Hazen’s  men  fell 
on  this  ground  where  the  monument  stands,  or  in  its  imme- 
diate vicinity?”  he  said,  “ I did  not  not  say  so  : I gave  the 
reasons  for  it”  (Record,  pp.  256,  278).  While  the  uncertainty 
of  this  witness’s  testimony  on  this  subject  hardly  demanded  a 
reply,  his  grounds  of  belief  being  based  upon  an  incidental 
statement  contained  as  he  says  in  the  report  of  General  Rose- 
crans,  not  at  all  necessary  to  the  general  correctness  of  the  re- 
port itself,  yet,  on  the  other  hand,  we  have  the  positive  testi- 
mony of  the  division  commander  and  of  officers  of  the  bri- 
gade, that  the  very  ground  upon  which  the  monument  stands 
was  the  identical  ground  held  by  Hazen’s  brigade  during  the 
battle  of  Stone  River.  Grouping  the  proofs,  therefore,  on 
this  point,  and  in  all  fairness  to  the  witnesses  who  testified  the 
following  conclusion  is  justified  : 

The  testimony  of  General  Wood  is  based  upon  information 
purely  hearsay,  historical,  and  vague  beliefs  respecting  the 
location  of  the  monument,  while  the  testimony  of  General 
Palmer,  the  division  commander  of  General  Hazen,  and  of 
Messrs.  Beebe  and  Kimberly,  members  of  the  brigade  staff  of 
General  Hazen  at  the  battle  of  Stone  River,  is  direct  and  pos- 
itive that  the  monument  is  located  on  the  ground  held  by  Ha- 
zen’s brigade  during  that  action. 

If  any  further  or  additional  evidence  of  malice  be  required 
in  this  attempt  to  libel  not  only  the'  living  before  this  Court, 
but  the  heroic  dead  of  Hazen’s  brigade  at  Stone  River,  the  ac- 
cused voluntarily  furnishes  it  in  clear  and  unmistakable 
terms  in  his  graphic  description  and  definition  of  impositions 
and  impostors.  He  stated  before  this  Court,  “ I am  accused, 
and  one  of  the  serious  accusations  against  me  is  accusing  Gen- 
eral Hazen  of  being  an  impostor.  There  are  several  kinds  of 
impostors.  There  are  impostors  for  a day,  there  are  impostors 
for  a month,  and  there  "are  impostors  whose  impositions  will 
last  to  all  eternity.  The  man  who  builds  a monument  to 
commemorate  a falsehood  is  the  greatest  impostor  that  the 
world  can  possibly  conceive  of.  We  wish  to  show  why  this 


19 


monument  was  raised,  and  we  want  to  show  the  imposture  of 
it”  (p.  252,  Record). 

If  this  language  means  anything  it  means  that  accused  in- 
tended to  stigmatize  General  Hazen  as  the  worst  and  most 
dangerous  of  impostors,  one  who  would  not  only  deceive  while 
living  but  continue  his  false  and  deceptive  claims  by  recording 
them  on  the  imperishable  granite.  Could  this  utterance  of 
the  accused  have  been  made  for  any  other  purpose  than  to 
reiterate  one  of  the  gravest  and  severest  of  his  libellous  accu- 
sations to  give  it  what  additional  force  and  effect  its  procla- 
mation in  this  presence  would  add  to  wound  the  feelings  and 
manhood  of  the  victim  of  his  slanders,  and  this,  too,  in  the 
presence  of  overwhelming  and  conclusive  proof  that  the  Stone 
River  monument  is  not  a lie  nor  an  imposition,  but  that  it 
stands,  as  near  as  human  memory  can  locate  it,  on  the  exact 
spot  where  the  heroic  men  of  that  brigade  so  well  fought,  and 
many  of  them  so  bravely  fell. 

What  motive  General  Stanley  could  have  in  thus  libelling 
the  ashes  of  the  heroes  sepultured  at  this  monument  is  difficult 
of  solution.  At  all  events  his  proofs  did  not  in  any  manner 
(even  supposing  his  assertion  to  be  true)  point  to  General 
Hazen  as  the  founder  of  the  monument,  or  that  he  aided  in 
founding  the  same. 

On  the  Missionary  Ridge  battle,  General  Stanley  intro- 
duced in  evidence  the  report  of  General  Sheridan,  in  which 
the  following  statement  appears  : “ General  Wood,  in  his  re- 
port to  General  Thomas,  of  artillery  taken,  claims  many 
pieces  which  were  the  prizes  of  my  division,  and  when  told 
by  me  that  the  report  was  untruthful  replied  that  it  was  based 
upon  the  report  of  General  Hazen,  who,  perhaps,  will  in  turn 
base  his  on  those  of  regiments  ; but  whether  Wood,  Hazen, 
regimental  or  company  commanders  are  responsible,  the  re- 
port is  untrue.  Eleven  of  these  guns  were  gleaned  from  the 
battlefield  and  appropriated  while  I was  pushing  the  enemy  on 
to  Chickamauga  Station.  ” It  is  difficult  to  understand  what 
this  is  intended  to  prove  or  disprove.  So  far  as  the  record 
goes,  there  is  nothing  to  show  that  General  Hazen  ever  did 
or  omitted  to  do  anything  denied  or  affirmed  by  it.  Mr.  Kim- 
berly testified  that  Hazen ’s  brigade  reached  the  crest  first, 


20 


driving  the  enemy  before  them  and  capturing  several  pieces 
of  artillery  ; a captured  loaded  piece  was  trained  and  dis- 
charged along  the  ridge,  causing  the  enemy  to  give  away  on 
the  crest  in  front  of  Sheridan’s  division,  then  advancing  up 
the  face  of  the  ridge.  Other  witnesses  would  have  been  pro- 
duced who  would  corroborate  the  testimony  of  Mr.  Kimberly, 
hut  the  Court  decided  that  it  had  all  the  testimony  on  the 
point  that  it  desired  to  hear  But  even  if  Hazen’s  men  did 
assist  Sheridan’s  division  in  clearing  the  ridge  in  front  of  it, 
and  a number  of  pieces  of  artillery  were  captured  by  Sheri- 
dan’s men  after  ascending  the  ridge,  there  might  be  a ques- 
tion in  such  a case  as  to  whether  Hazen’s  men  might  not  be 
considered  joint  captors  with  Sheridan’s  men.  Here  also  I 
am  at  a loss  to  understand  the  motives  of  the  accused  in  his 
effort  to  bring  General  Hazen  into  apparent  antagonism  with 
General  Sheridan  as  assuming  to  claim  any  of  the  well-earned 
laurels  of  that  intrepid  leader. 

The  next  point  in  the  series  of  libellous  imputations  is, 
did  General  Hazen  testify  falsely  on  the  Belknap  trial  ? The 
entire  testimony  pertinent  to  this  case  given  by  General 
Hazen  is  in  substance  as  follows  : He  testified  (on  the  Belk- 
nap trial)  that  his  attention  had  been  called  to  the  subject 
of  post-traders  at  Fort  Sill ; that  he  communicated  this 
information  to  the  Military  Committee  of  the  House  of 
Representatives  in  1872,  having  been  duly  subpoenaed  to 
testify  before  that  committee  ; that  after  the  publication 
of  the  article  in  The  Tribune , Mr.  Belknap  made  no  in- 
quiry regarding  the  truth  of  the  statements  contained  in  that 
article  ; that  his  relations  with  Mr.  Belknap  up  to  February, 
1872,  were  friendly  ; that  he  had  met  Mr.  Belknap  in  Wash- 
ington ; that  his  communications  were  respecting  post-traders 
generally,  but  on  the  same  subject  at  Fort  Sill  particularly  ; 
that  he  came  before  the  committee  in  1872  on  subpoena  ; that 
he  proposed  to  give  information  on  post-traders  to  General  Gar- 
field before  being  subpoenaed  ; that  he  was  called  primarily  to 
testify  concerning  French  and  German  staff  organizations,  and 
the  subject  of  post -traders  he  considered  as  pertaining  to  the 
same  thing  ; that  he  wrote  to  the  Secretary  of  War,  through 
the  regular  channels,  about  the  farming  out  of  post-trader- 


21 


ships  ; that  it  was  his  duty  to  do  so.  During  cross-examina- 
tion on  this  testimony  the  letter  written  to  the  Secretary  of 
War,  of  September  12th,  1875,  was  introduced  in  evidence. 
In  that  letter  General  Hazen  says  : “ Soon  after,  when  Mr. 
Coburn  was  chairman  of  the  committee,  I was  summoned  to 
Washington  to  give  evidence  upon  staff  organization  of  the 
French  and  German  armies.  After  finishing  upon  these  sub- 
jects I was  questioned  upon  the  subject  of  post-traders.  I at 
first  remonstrated  on  the  ground  that  I had  not  reported  the 
matter  to  you,  because  I believed  the  Commissary  Department 
would  defeat  any  action  in  that  direction,  and  that  my  testi- 
mony might  be  a discourtesy  to  the  Secretary. 5 ’ During  the 
remainder  of  the  cross-examination  of  the  witness  this  day, 
he  clung  to  the  belief  that  he  had  written  to  the  Secretary  of 
War  through  the  Adjutant- General  regarding  post-traders  be* 
fore  he  had  testified  before  the  committee  in  1872,  but  did 
not  know  that  it  had  reached  the  Secretary,  as  he  received  no 
reply.  Next  day,  upon  reflection,  General  Hazen  appeared 
before  the  Senate  to  correct  his  testimony  given  the  previous 
day,  and  testified  as  follows:  “ Upon  consideration,  I find 
that  the  letter  which  I referred  to,  the  official  letter  which  I 
said  was  reported  to  the  War  Department  for  General  Bel- 
knap’s information  with  regard  to  post-traders  was  written  at 
Fort  Buford,  and  not  at  Fort  Hays,  and  that  would  make  it 
after  I testified  to  the  House  Committee,  and  not  before  it. 
So  that  I wish  to  change  my  testimony  in  that  respect.  It 
was  written  after  and  not  before , as  I supposed  yesterday.  ’ ’ 
General  Hazen  further  testified  on  this  occasion  that  he  wrote 
but  two  letters  to  Secretary  Belknap  on  the  subject,  namely, 
the  letter  of  September  12th,  1875,  directly  and  marked  con- 
fidential, and  the  letter  he  had  testified  to  as  having  written 
after  he  had  testified  before  the  House  Committee.  This  last- 
mentioned  letter  he  sent  through  the  regular  channels,  and 
his  testimony  on  the  first  day’s  examination  shows  it,  but  upon 
appearing  to  correct  his  testimony  Mr.  Carpenter  assumed 
that  the  letter  was  sent  direct  to  the  Secretary,  and  confined 
the  witness  to  u Yes”  or  “ No”  whether  it  was  so  or  not.  It 
was  this  bullying  of  counsel  that  confused  the  witness,  and  no 
doubt  created  the  unfavorable  impression  testified  to  here.  It 


22 


is  not  unusual  for  witnesses  after  refreshing  their  memories  to 
return  and  correct  their  testimony,  and  that  was  all  General 
Hazen  has  been  guilty  of  in  this  instance.  His  testimony,  as  a 
whole,  is  perfectly  consistent  and  truthful. 

The  statement  contained  in  General  Hazen’s  letter  of  Sep- 
tember 12th,  1875 — “ I have  tried  before  to  get  this  matter  be- 
fore you,  but  it  meets  its  usual  barrier  in  the  office  of  the 
Commissary- General.  I enclose  you  a case  of  it.  The  law  re- 
ferred to  in  that  letter  was  a mandatory  one  of  perfectly  plain 
construction,  one  in  which  the  troops  on  the  frontier  are  in- 
terested to  the  extent  of  about  two  millions  of  dollars  an- 
nually, and  the  construction  referred  to  in  that  letter  is  not 
understood  either  in  fact  or  in  justice,  only  that  it  has  been 
opposed  from  the  first  by  the  department  whose  duty  it  was 
!o  carry  it  out” — is  not  a falsehood.  General  Hazen  had  a 
right  to  so  construe  the  action  of  the  Commissary  Department. 
It  is  notorious  and  in  evidence  that  the  law  requiring  the 
Commissary  Department  to  keep  such  articles  for  sale  to 
officers  and  enlisted  men  as  might  be  designated  by  the  In- 
spector-General has  not  been  enforced.  That  law  was  en- 
acted immediately  upon  the  passage  of  the  law  abolishing  sut- 
lers, and  its  evident  intent  was  that  the  Commissary  Depart- 
ment should  supply  the  articles  theretofore  supplied  by  sut- 
lers. The  Commissary  Department  has  never  executed  the 
law,  but  has  interposed  the  barrier  to  its  execution  that 
no  adequate  appropriation  was  available  for  the  purpose, 
yet  it  is  shown  in  evidence  that  the  very  year  in  which  it 
was  to  go  into  operation  a large  surplus  of  commissary  funds 
available  for  the  purpose  was  in  the  treasury.  General 
Hazen,  therefore,  had  a right  to  believe  as  he  did,  and  I pre- 
sume every  officer  on  this  Court  will  believe  with  him  that  his 
strictures  on  the  Commissary  Department  in  this  respect  were 
justly  merited.  General  Hazen  testified  in  the  Belknap  im- 
peachment case,  “ I proposed  to  give  information  in  regard 
to  post-traders  before  I was  subpoenaed  and  further  on  he  tes- 
tified, 66 1 wish  also  to  say  with  regard  to  my  testimony  before 
the  Military  Committee  four  years  ago,  that  I was  called  there 
principally,  as  stated  in  that  letter,  to  testify  with  regard  to  the 
French  and  German  staff  organizations,  and  the  other  [the 


23 


post-traders]  was  a branch  of  the  subject.”  This  testimony  is 
assumed  to  conflict  with  the  extract  of  General  Hazen’ s letter 
of  September  12th,  1875,  referred  to.  General  Hazen  testified 
on  this  point  that  he  understood  from  the  chairman  of  the 
committee  and  always  believed  that  when  he  testified  before 
the  committee  he  did  so  under  condition  that  his  name  as  the 
author  of  that  testimony  would  not  be  published  ; that  he  un- 
derstood from  a prominent  member  of  the  House  with  whom 
he  was  corresponding  that  he  had  impressed  upon  Mr.  Co- 
burn the  fact  that  his  name  should  not  be  used  in  connection 
with  that  testimony  ; that  Mr.  Coburn  had  been  enjoined  in 
that  connection.  General  Hazen,  therefore,  had  every  reason 
to  believe  that  what  he  might  testify  to  before  the  committee 
would  be  confidential,  as  he  was  not  informed  that  its  political 
complexion  would  interfere  with  this  idea  ; but  aside  from  this 
the  testimony  of  Mr.  Coburn  shows  that  it  was  directly  on  the 
subject  of  staff  matters  that  General  Hazen  was  called  to  testify. 
He  says,  “ The  Committee  on  Military  Affairs  was  consid- 
ering the  subject  of  the  duties  of  commissaries.  Amongst 
these  duties  there  seems  to  be  a provision  of  law  that  the 
commissary  should  supply  the  troops  and  officers  with  such  ar- 
ticles as  are  usually  supplied  by  post-traders,  and  the  question 
arose  in  the  committee  as  to  whether  the  commissary  should 
keep  those  supplies  or  the  post-traders,  and  so  the  abuses  and 
uses  of  that  branch  of  the  military  service  were  brought  before 
the  committee.  General  Hazen  was  especially  sent  for  in  re- 
lation to  that  matter.  Upon  this,  however,  it  was  not  neces- 
sary to  remonstrate  if  the  scope  of  the  investigation  was  to  be 
general,  and  there  was  no  reason  why  General  Hazen  should 
remonstrate  upon  testifying  on  a subject  he  had  written  upon  so 
extensively.  In  answer  to  the  question  on  cross-examination 
in  the  Belknap  trial,  u Distinguish  between  what  you  said  and 
what  Belknap  said,”  General  Hazen  said:  “I  said  to  him 
that  I felt  that  I had  been  unjustly  construed,  that  I thought 
there  had  been  a misunderstanding  growing  out  of  my  testi- 
mony before  the  committee  four  years  ago,  and  that  I desired 
that  he  permit  me  to  address  him  fully  on  the  subject.  I 
went  into  some  detail  of  my  testimony  at  the  time.  I will  not 
pretend  to  trace  it  now.  He  told  me  he  wanted  me  to  write 


24 


him  fully  and  frankly,  and  that  was  the  [reason  the  letter  was 
written.  I said  to  him  specially  that  my  testimony  before  the 
Military  Committee  did  not  refer  to  himself  ; but  did  refer  to 
the  faulty  system  of  post-traders,  and  their  being  farmed  out, 
and  that  I did  not  consider  myself  responsible  for  the  gossip 
that  had  grown  up.”  (Belknap  trial,  p.  723).  This  testi- 
mony of  both  Mr.  Coburn  and  General  Hazen  shows  conclu- 
sively that  Hazen  was  not  subpoenaed  to  testify  on  the  sub- 
ject of  post-traders  any  more  than  he  was  to  testify  concerning 
the  staff,  or  more  especially  that  branch  of  it  known  as  the 
Subsistence  Department ; staff  organization  and  administration 
being  the  only  subjects  upon  which  the  House  committee 
was  at  the  time  authorized  to  consider,  and  General  Hazen 
attended  with  that  understanding. 

The  article  in  the  H ew  York  Tribune  of  February  15th,  1872, 
on  the  subject  of  post-traders  and  the  farming  out  of  post- 
traderships  (Belknap  trial,  pp.  578,  579),  while  taken  mainly 
from  letters  written  by  General  Hazen  and  Lieut.  Pratt  on  the 
subject,  as  testified  to  by  Mr.  Smalley,  can  in  no  sense  be  said 
to  have  been  written  by  General  Hazen.  Mr.  Smalley  testified 
that  the  article  was  written  by  him,  that  its  materials  were  ex- 
tracted from  a letter  written  by  General  Hazen  and  a letter 
written  by  Lieut.  Pratt,  not  addressed  to  him  (Smalley),  the  let- 
ters having  been  received  privately  and  in  confidence  (pp.  368, 
369,  370).  The  writing  and  publishing  of  this  article  cannot 
be  charged  to  General  Hazen,  for  there  is  no  evidence  tending 
to  show  that  he  ever  gave  his  consent  to  the  same,  or  that  he 
was  even  consulted  respecting  it.  Mr.  Smalley  says  that  he 
voluntarily  published  the  article  without  reference  to  Hazen 
(pp.  369,  370). 

In  candor  to  this  eminent  tribunal,  General  Stanley 
must  admit  that  his  proposed  proofs  in  support  of  the 
truth  of  his  libellous  writings  as  well  as  of  the  series  of 
charges  preferred  by  him  against  General  Hazen  have  utterly 
failed  him.  Hot  even  the  semblance  of  the  truth  of  his  accu- 
sations has  been  shown,  nor  grounds  to  believe  in  the  truth  of 
them. 

Before  closing  this  brief  summary  of  the  case,  it  is  proper 
to  remark  that  one  very  significant  feature  of  it  appeals  to  the 


I 


25 

understanding  of  all  men.  The  evidence  shows  that  for  many 
years  General  Stanley  has  on  every  available  occasion  and  op- 
portunity made  and  spread  broadcast  these  most  serious  and 
damaging  accusations  against  General  Hazen,  with  no  pretence 
or  claim,  so  far  as  we  can  ascertain,  of  any  provocation  what- 
ever on  the  part  of  General  Hazen.  What  can  be  said  of  such 
conduct  ? A case  can  very  well  be  imagined  where  a person 
might  in  a certain  sense  be  justified  and  his  legal  responsibili- 
ties lessened  if  some  real  or  imaginary  injury  were  done  him 
and  the  weakness  of  our  nature  impelled  him  to  sin  against 
the  laws  by  inflicting  immediate  chastisement  to  the  wrong- 
doer or  supposed  wrong- doer,  but  this  case  presents  no  such 
feature  or  excuse.  General  Stanley  makes  no  claim  or  show- 
ing that  he  has  ever  been  wronged  in  thought,  word,  or  deed 
by  the  officer  whose  character  he  holds  up  to  public  execra- 
tion and  contempt.  We  find  him  then  the  self-constituted 
custodian  of  the  standard  of  truthfulness,  honor,  and  bravery 
in  the  army  requiring  every  one  of  us  to  bend  the  knee  before 
his  colors,  under  [penalty  of  being  proclaimed  a perjurer,  an 
impostor,  and  coward. 


( 


ARGUMENT  SUBMITTED  BY  MR.  RICHARD  T. 
MERRICK,  COUNSEL  FOR  GENERAL  HAZEN. 


The  accused  has  been  arraigned  upon  two  charges  : 

1.  “ Conduct  unbecoming  an  officer  and  a gentleman.” 

2.  “ Conduct  to  the  prejudice  of  good  order  and  military 
discipline.” 

It  is  necessary  in  the  first  instance  briefly  to  develop  the  at- 
titude of  the  case  before  considering  the  issues  of  law  and  fact 
that  it  involves.  In  the  progress  of  the  trial,  counsel  for  the 
accused  has  made  repeated  efforts  to  embarrass  the  issues  pre- 
sented, by  insisting  that  this  is  not  a trial  for  libel,  and  that 
the  rules  governing  such  a proceeding  cannot  be  safely  resorted 
to  for  our  guidance  in  this  investigation. 

Now  it  must  be  conceded  that  any  act  in  violation  of  the 
rules  of  conduct  prescribed  by  the  common  law,  which  would 
subject  the  party  to  an  ignominious  punishment,  such  as  con  - 
finement in  a jail,  is  an  act  appropriately  and  technically 
described  as  u conduct  unbecoming  an  officer  and  a gentle- 
man.” It  therefore  follows  that  when  an  officer  is  charged 
with  ‘ ‘ conduct  unbecoming  an  officer  and  a gentleman,  ’ ’ and 
the  specification  under  the  charge  designates  and  describes  an 
act  which  is  criminal  in  its  character,  the  Court  must  try  and 
determine  the  question  whether  the  officer  is  guilty  of  that 
particular  criminal  act.  For  instance,  if  the  act  set  forth  in 
the  specification  were  embezzlement,  or  bigamy,  or  pro- 
curing money  under  false  pretences,  or  larceny,  libel , or 
any  other  one  of  the  large  class  of  criminal  offences  known  to 
the  common  law,  the  Court  could  proceed  in  the  investigation 
with  which  it  would  be  charged  in  no  other  way  than  such  as 
would  lead  it  to  a satisfactory  determination  of  the  guilt  or  in- 
nocence of  the  party  on  trial  in  respect  of  the  particular  crim- 
inal offence  described  in  the  specification.  And  in  such  pro- 
ceeding it  could  have  no  safer  or  better  established  and  wiser 
principles  for  the  guidance  of  its  investigation  than  those  estab- 


27 


fished  for  the  direction  of  Courts  in  the  trial  of  these  offences 
at  common  law. 

Now  the  criminal  act  charged  in  the  specifications  in  this 
case  is  the  publication  of  a libel,  or,  to  speak  more  accurately, 
according  to  the  record,  the  publication  of  several  libels.  For 
such  an  offence  at  common  law,  Courts  in  the  administration  of 
that  system  of  jurisprudence  may  fine  the  convicted  party,  in 
the  exercise  of  their  discretion,  to  any  amount,  and  may,  in  the 
exercise  of  the  same  discretion,  imprison  him  for  any  definite 
period  of  time,  except  that  the  sentence  shall  not  be  imprison- 
ment for  the  lifetime  of  the  offender. 

Therefore  the  question  here  presented  under  the  first 
charge  is  whether  the  accused  is  guilty  of  publishing  the  libels 
set  forth  in  the  specifications,  or  any  of  them,  and  upon  a find- 
ing upon  that  issue  the  finding  of  the  Court  in  respect  to  the 
charge  necessarily  follows. 

The  defence  interposed  in  this  case  is  : 

First — That  the  statements  in  the  defamatory  publications 
that  constitute  the  libels  are  true. 

Second — That  the  accused  published  those  statements  ‘ 6 in 
good  faith  and  without  malice,  having  good  and  substantial 
reasons  for  believing  what  he  said.” 

In  stating  the  second  ground  of  defence,  I quote  the  lan- 
guage of  the  counsel  of  the  accused,  as  reported  on  page  481 
of  the  record. 

Upon  the  special  issues  thus  made  under  the  general  plea 
of  ‘ 4 not  guilty,  ’ ’ the  first  inquiry  is  : What  is  the  proof 
presented  by  the  Judge- Advocate,  in  the  first  instance,  to 
establish  the  charges  ? And  in  this  connection  it  seems  that 
notwithstanding  these  defences  of  the  truth  of  the  publi- 
cation, and  excuse  for  publishing,  even  if  the  statements  in 
those  publications  are  not  true,  the  Court  is  disposed  to  leave 
the  accused  at  large  under  the  general  issue  of  ‘ 4 not  guilty,  ’ ’ 
to  deny  that  any  publications  were  made.  This  privilege  is 
apparently  inconsistent  with  these  special  defences,  and  I ques- 
tion if  it  was  ever  known  in  any  court  of  law  that  a defendant 
in  an  indictment  for  libel  could  justify  on  the  ground  of  the 
truth  of  the  defamatory  publication,  and  at  the  same  time 
maintain  that  he  never  published  at  all. 


28 


■ i 

PROOF  OF  THE  PUBLICATIONS. 

Nevertheless,  I take  the  case  as  I find  it,  and  proceed  to  the 
first  inquiry,  namely,  66  the  proof  of  the  publications.” 

The  letter  set  forth  in,  specification  first,  under  the  charge  of 
4 4 conduct  unbecoming  an  officer  and  a gentleman,  ’ 5 is  admitted 
by  the  accused  to  have  been  written  by  him,  and  by  him  for- 
warded to  General  Hazen  at  Vienna,  in  the  Empire  of  Aus- 
tria. This  letter  bears  date  September  6th,  1877,  and  is  the 
first  libel  charged  against  the  accused. 

Specification  second  repeats  the  letter,  and  specifications 
third,  fourth,  fifth,  and  sixth  set  forth  distinct  and  separate 
parts  of  this  letter.  Specification  seventh  sets  forth  a publica-^ 
tion  which  it  alleges  appeared  in  the  St.  Paul  Pioneer  Press 
on  or  about  December  1st,  1877,  and  which  publication  is  sub- 
stantially the  letter  set  forth  in  specification  first,  and  acknowl- 
edged, as  I have  stated,  to  have  been  written  by  the  accused. 
But  it  is  maintained  that  although  the  letter  was  written  by 
the  accused,  he  is  guiltless  of  any  participation  in  the  act  of 
its  publication  in  the  journal  referred  to.  The  specification 
alleges  that  the  accused  ‘ c did  publish  and  did  aid  and  abet  in 
the  publication”  of  said  letter  in  the  journal  to  which  I have 
alluded. 

Now  before  proceeding  further  it  is  necessary  to  inquire 
whether  this  defence  is  sustained  by  the  proof  It  is  ad- 
mitted by  the  accused  that  he  wrote  the  letter.  And  it  is  in 
proof  from  W.  W.  Belknap,  one  of  the  witnesses  for  the  de- 
fence, that  the  accused  sent  him  a copy  of  that  letter,  instruct- 
ing him  at  the  same  time,  however,  not  to  let  it  get  in  the 
press.  Belknap  says  (p.  566)  : “ I heard  that  he  (the  ac- 
cused) had  written  such  a letter.  He  informed  me  so  him- 
self. ’ ’ He  then  states  that  he  requested  a copy,  which  was 
sent  to  him  by  mail,  under  the  circumstances  I have  indicated. 
He  then  goes  on  to  state,  in  reply  to  interrogatories,  that  he 
showed  the  letter  to  several  parties  and  gave  a copy  of  it  to 
one  or  two  officers  of  the  army,  and  kept  a copy  for  himself. 
He  then  goes  on  to  say  (p.  561)  : “ I published  it  in  no  news- 
paper, and  how  it  got  there  I do  not  know.  If  I ever  did  I 
have  forgotten.”  It,  therefore,  clearly  appears’ that  if  there 


29 


was,  in  fact,  any  injunction  at  all  about  not  publishing  the 
letter  in  a newspaper,  it  was  very  strictly  limited  to  news- 
papers only,  and  that  Mr.  Belknap  felt  that  he  was  entirely 
at  liberty  to  give  it  that  kind  of  refined  circulation  which 
would  insure  its  publicity  through  less  common  instrumental- 
ities than  those  resorted  to  by  ordinary  men.  One  thing  is 
certain,  he  did  give  it  publicity,  and,  acccording  to  his  evi- 
dence, publicity  among  that  class  of  gentlemen  whose  good 
opinion  was  most  valued  by  General  Hazen,  and  whose  es- 
teem and  respect  was  most  necessary  for  him  in  the  perform- 
ance of  his  duties  as  an  officer  of  the  United  States  Army. 
Nor  is  it  at  all  surprising  that  this  interesting  paper,  thus  put 
into  circulation  by  the  conjoined  efforts  of  the  accused  as  its 
composer,  and  Belknap  as  its  exhibitor,  should  find  its  way 
into  the  columns  of  any  enterprising  journal  : and  the  accused 
therefore,  in  his  letter  to  General  Sherman  presented  to  the 
Court  at  the  commencement  of  this  case,  whilst  denying  that 
he  actually  caused  the  letter  to  be  published  in  the  St.  Paul  Pio- 
neer Press , admits  his  responsibility  for  its  appearance  there 
because  of  his  own  carelessness. 

But  there  is  another  and  yet  more  conclusive  piece  of  evi- 
dence connecting  the  accused  with  this  publication,  placing 
his  complicity  in  the  transaction  beyond  the  reach  of  ques- 
tion. In  his  conversation  with  F.  L.  Hosmer,  when  he  was 
getting  up  the  libel,  which  appeared  in  the  New  York  Times 
on  March  14th,  1879,  and  which  constitutes  the  subject  of  the 
twelfth  specification  under  the  first  charge,  and  the  third 
specification  under  the  second  charge,  he  made  the  following 
statement,  referring  to  General  Hazen  and  certain  of  his 
friends  and  legal  adviser  in  Washington  City  : u I don’t  know 
what  progress  they’re  making  ; but  I do  know  what  they’re 
afraid  of  ; that  is,  that  if  his  name  ever  comes  before  the  United 
States  Senate  he  will  meet  charges  of  perjury  and  cowardice 
which  I have  made  to  his  face,  to  the  newspapers,  and  in 
official  statements.  ’ ’ 

This  constitutes  part  of  the  third  libel,  which  1]  shall  con- 
sider hereafter  more  generally.  I now  refer  to  it  only  for 
the  purpose  of  proving  the  publication  of  the  second  libel. 
Mr.  Hosmer  stated  that  the  words  I have  just  read  were  Gen- 


30 


eral  Stanley’s  words,  and  being  interrogated  by  the  accused, 
testified  as  follows  : 

Q.  Are  you  certain  whether  I said  charges  have  been  made 
to  the  newspapers  or  in  the  newspapers  ? 

A.  I did  not  notice  that  particular  point.  I wrote  it  down 
exactly  as  you  gave  it  to  me,  word  for  word , very  slowly. 

How  whether  the  reporter  in  taking  down  the  words  of  the 
accused  mistook  the  word  in  for  to,  and  should  have  written 
in  the  newspapers  instead  of  to  the  newspapers,  is  quite  im- 
material. He  could  not,  writing  down  “ exactly”  and  u word 
for  word”  and  “ very  slowly,”  have  entirely  mistaken  what 
was  said,  so  far  as  to  make  the  sentence  conform  to  the  ap- 
parent theory  the  accused  seemed  to  suggest  in  his  interroga- 
tory. For  the  sentence  was  a plain  declaration  of  three  things 
that  the  accused  had  done,  namely  : I have  made  certain 
charges— -first,  to  his  face  ; second , to  the  newspapers  ; third , 
in  official  statements.  | 

NARROWING  DOWN  THE  FIELD  OF  PROOFS. 

How,  as  far  as  this  trial  has  developed,  there  has  been  no 
other  publication  calumniating  General  Hazen  coming  from 
the  accused  and  appearing  in  any  public  journal  in  the  coun- 
try, except  that  mentioned  in  the  specification  as  appearing  in 
the  St.  Paul  Pioneer  Press.  And  if  what  the  accused  said 
to  Mr.  Hosmer,  that  he  had  made  charges  of  cowardice  and 
perjury  to  the  public  press,  was  true,  and  not  braggadocio 
and  abuse,  then  the  press  to  which  he  referred  was  the  identi- 
cal journal  designated  in  specification  seven.  If  there  had  been 
any  other  journal  of  which  he  knew  that  would  have  made 
good  his  word  to  Hosmer,  why  did  not  he  introduce  it  on  the 
tiral  ? — for  as  it  would  not  have  answered  the  description  of 
the  paper  given  in  the  specification,  it  could  have  done  him  no 
ffiarm,  but  would,  on  the  contrary,  have  done  him  great  good 
by  extricating  him  from  the  dilemma  in  which  he  has  placed 
himself. 

Specifications  the  eighth,  ninth,  and  tenth,  respectively,  set 
forth  as  having  been  published  in  the  St.  Paul  Pioneer 
Press  the  several  different  portions  of  the  letter  set  out  in  full 


31 


in  specification  seventh,  and  in  each  charge  that  the  accused 
did  “ aid  and  abet  in  the  publication.”  Specification  eleven 
sets  out  the  entire  letter,  and  charges  that  the  accused  fur- 
nished the  same  for  publication  in  the  St.  Paul  Pioneer 
Press. 

Specification  twelfth  contains  the  third  of  the  libels  consti- 
tuting the  offence  of  the  accused,  and  sets  forth  that  he  did 
“ cause  and  allow  to  be  published  in  . . . the  New  York 

Times  certain  false  and  malicious  statements  and  imputations 
concerning  and  against  Colonel  William  B.  Hazen,”  etc.,  and 
thereupon  sets  forth  the  libel  in  full.  The  proof  of  the  par- 
ticipation of  the  accused  in  the  publication  of  this  libel  has 
already  been  partly  considered  in  discussing  the  testimony  of 
F.  L.  Hosmer,  with  a view  to  establishing  the  publication  of 
the  second  of  the  series  of  libels. 

HOW  THE  CHARGES  WERE  MADE. 

F.  L.  Hosmer  testifies  that  he  was  on  March  14th,  1879,  a 
reporter  for  the  New  York  Times ; that  he  called  upon  the 
accused  in  consequence  of  something  he  had  seen  in  one  of  the 
papers  in  reference  to  General  Hazen,  or  General  Hazen  and 
himself,  to  interview  him  for  the  purpose  of  preparing  an  ar- 
ticle for  the  journal  on  which  he  was  employed  ; that  the  ac- 
cused knew  what  his  occupation  was,  and  was  informed  of  the 
purpose  of  his  visit ; and  that  he  was  in  fact  so  informed  is  ap- 
parent from  an  expression  in  the  article  which  forms  the  subject 
of  the  specification  I am  now  considering.  The  article  states 
that  General  Stanley,  when  interrogated  by  the  reporter,  said 
that  as  far  as  the  general  public  is  concerned  he  thought  Gen- 
eral Hazen  had  kept  it  pretty  well  informed,  and  it  was  hardly 
necessary  for  him  to  say  anything.  This  expression  is  in  quo- 
tation marks  in  the  article  referred  to,  and  Hosmer  testified 
that  everything  in  the  article  that  was  put  in  quotation  marks 
was  General  Stanley’s  own  and  exact  language,  written  down 
at  the  time  u word  for  word.” 

General  Stanley  then,  having  said  that  the  public  was  “ pretty 
well  informed  ” — so  well  that  it  was  “ hardly”  necessary  for 
him  to  say  anything — proceeds  to  say  to  that  public  what  he 


32 


does  think  it  necessary  he  should  say  ; and  thereupon  follows 
matter,  if  possible,  more  defamatory  than  in  either  of  the  two 
preceding  libels.  Hosmer  further  states  in  his  testimony  that 
after  taking  down  what  the  accused  said  in  longhand,  and 
“ word  for  wordf  he  read  it  over  to  him,  and  that  it  was  ap- 
proved by  him  as  correct.  And  he  further  says  that  subse- 
quent to  the  publication  the  accused  explained  to  him  that  the 
intimation  therein  that  he  had  commanded  a corps  at  Pick- 
ett’s Mills  was  a mistake,  and  the  witness,  when  interrogated 
by  the  accused,  stated  that  they  had  not  read  the  article  in  the 
same  way,  and  agreed  that  in  that  particular  there  was  a mis- 
take. This,  however,  being  the  only  correction  made  by  the 
accused,  is  necessarily  an  admission  of  everything  not  correct. 
The  only  question,  therefore,  remaining  in  reference  to  the 
complicity  of  the  accused  in  the  publication  of  this  libel  is 
whether  the  facts  I have  stated  constitute  such  complicity. 

This  question  is  hardly  worthy  the  dignity  of  argument. 
That  the  defamatory  statements  that  constitute  the  substance 
of  the  article  were  from  the  mouth  of  the  accused  cannot  be 
questioned. 

The  fact  that  they  were  taken  down  as  he  uttered  them  is 
undisputed. 

The  fact  that  they  were  read  over  to  him,  that  their  accu- 
racy might  be  tested,  is  likewise  undisputed. 

Neither  is  it  disputed  that  he  knew  they  were  designed  for 
publication,  and  for  publication  in  that  particular  journal  in 
which  they  appeared. 

And  that  after  their  appearance  he  complained  of  one  im- 
material error,  and  thus  ratified  and  affirmed  the  accuracy  of 
all  the  rest  of  the  article. 

LIBELLOUS  NATURE  OF  THE  CHARGES. 

I might  refer  upon  this  subject  to  the  rules  of  law  as  laid 
down  in  adjudicated  cases  (Section  540,  Starkey  on  Slander 
and  Libel),  and  I might  show  the  difference  in  the  rule  which 
holds  a defendant  in  a civil  case  responsible  for  the  publication 
of  a libel  by  procuration,  and  where  he  is  held  responsible  for 
a publication  under  similar  circumstances  in  a criminal  case. 


33 


But  surely  any  officer  of  the  United  States  Army  would  blush 
at  the  thought  of  asserting  for  an  instant  that  the  accused  is 
not,  under  the  facts  I have  detailed,  responsible  for  the  pub- 
lication of  the  libel  in  question,  and  1 should  insult  any  culti- 
vated understanding  by  debating  the  question. 

Having  thus  shown  that  the  publications  were  made,  the 
next  question  is  whether  the  matter  contained  in  them  consti- 
tutes what  is  known  to  the  law  as  libellous  matter.  This  ques- 
tion is  answered  by  reading  the  publications.  And  here  it  may 
be  necessary  to  analyze  them  and  briefly  comment  on  their  in- 
jurious and  defamatory  charges. 

In  substance,  the  first  and  the  second  of  the  series  of  libels 
are  the  same.  The  accused  says  that  he  has  seen  the  decision 
of  the  President  upon  certain  charges  he  has  preferred  against 
General  Hazen,  that  “ the  service  would  not  be  conserved  by 
convening  a general  court-martial  to  try  you  (Hazen)  at  this 
time. 5 5 

He  then  proceeds  to  say  that  he  is  not  disappointed,  and 
writes  as  follows  : 

“ You  know  just  as  well  as  I do  that  your  trial  could  only 
have  resulted  in  your  conviction,  and  you  already  stand  con- 
victed before  those  who  heard  you  testify. 5 5 

During  the  progress  of  the  trial  it  seems  to  have  been  re- 
garded that  these  expressions  were  obnoxious  to  the  law  only 
in  so  far  as  they  were  libellous  upon  General  Hazen  ; but 
when  looked  at  from  a military  point  of  view,  they  deserve 
severer  censure  and  involve  greater  criminality  for  another 
reason.  They  are  an  open  assault  upon  the  Executive  of  the 
United  States  for  the  manner  in  which  he  has  discharged  his 
official  duty  as  the  Commander-in-Chief  of  the  Army.  The 
accused  had  thought  proper,  in  the  exercise  of  what  is  conceded 
to  be  the  privilege  of  every  officer  when  acting  in  “ good 
faith  ” and  under  an  honest  conviction,  to  prefer  charges 
against  one  of  his  brother  officers.  These  charges  had  been 
duly  laid  before  the  proper  military  authorities,  and  finally 
reached  the  President  of  the  United  States.  The  Commander- 
in-Chief  had  iven  them  that  consideration  which  his  duty  to 
the  country  and  the  army  required,  and  it  is  to  be  presumed 
that  he  conscientiously  performed  in  the  premises  the  obliga- 
3 


34 


tion  imposed  upon  him  by  the  Constitution  of  the  United 
States.  Having  in  the  performance  of  that  duty  determined 
that  a court-martial  should  not  he  convened  for  their  trial,  the 
officer  by  whom  they  were  preferred  publishes  to  the  world 
that  he  is  “ not  disappointed  ” at  the  fate  they  have  met,  and 
at  the  same  time  also  publishes  to  the  world  his  solemn  assur- 
ances of  the  guilt  of  the  party  against  whom  the  charges  were 
directed,  and  further  says  in  his  publication  that  multitudes 
besides  himself  knew  of  this  guilt.  If  he  does  not  mean  to 
arraign  the  President  for  malversation  in  office,  what  does  he 
mean  ? Why  is  he  not  disappointed  ? Why  does  he  continue 
to  reassert  guilt  ? Why  does  he  leave  the  recognized  channel 
of  official  communication  and  enter  the  arena  of  public  debate 
before  the  people  ? What  other  object  can  he  comtemplate  ex- 
cept to  create  the  impression  that  the  object  of  his  vindic- 
tive malice  has  not  been  criminally  arraigned  to  answer  for 
his  guilt  by  the  unlawful,  unconstitutional,  and  criminal  inter- 
position of  the  Commander-in-Chief  of  the  Army. 

AN  OUTLET  FOE  VINDICTIVE  MALICE. 

But  whether  this  publication,  in  the  aspect  in  which  I am 
now  considering  it,  be  regarded  as  libellous  upon  the  Com- 
mander-in-Chief  of  the  Army  or  not,  one  conclusion  must  fol- 
low from  the  subsequent  parts  of  this  letter,  when  taken  in 
connection  with  that  part  I have  been  discussing,  and  that  con- 
clusion is  that  the  accused,  having  exhausted  all  legitimate 
means  of  attacking  General  Hazen,  derived  from  the  failure 
of  his  designs  new  vigor  and  intensity  to  his  vindictive  malice,, 
and  determined  that  since  he  could  not  ruin  his  enemy  by  law 
he  would  destroy  his  character  by  defamatory  libels.  If  the 
officers  of  the  Army  are  willing  to  assert  in  solemn  adjudica- 
tion that  conduct  such  as  this  is  ‘ ‘ becoming  an  officer  and  a 
gentleman,”  it  is  to  be  hoped  that  civilians  will  never  seek 
for  enlightened  rules  to  restrain  the  latter  class  in  the  code 
that  governs  the  former. 

The  latter  clause  of  the  letter  is  as  follows  : 

“ I now  give  you  fair  warning  that  I am  fully  informed  of 
your  disgraceful  conduct  at  Shiloh,  and  when  the  proper  oc- 


35 


casion  offers  will  use  the  information  to  stop  your  career  of 
imposture. 5 5 

The  specifications  which  follow  the  first,  subdivide  this  par- 
agraph of  the  letter,  and  by  innuendo  allege  that  “ disgrace- 
ful ” conduct  was  intended  to  signify  cowardice,  and  that  the 
words  “ career  of  imposture”  were  intended  to  signify  that- 
General  Hazen,  to  whom  they  referred,  was  an  impostor. 

Some  question  arose  in  the  progress  of  the  trial  in  reference' 
to  the  use  in  certain  of  these  specifications  of  words  of  tech- 
nical signification.  For  instance,  in  the  third,  after  averring 
that  the  accusation  therein  contained  is  ‘ 6 unfounded,  false,  and 
malicious,”  the  specification  continues,  “ and  was  wickedly 
devised  by  the  said  Stanley.”  And  it  was  asserted  by  the 
defence  that  it  was  only  necessary  to  be  shown,  on  behalf  of 
the  accused,  that  he  did  not  devise  the  charge,  thereby  meaning 
that  he  did  not  originate  it,  and  that  he  was  not  the  author  of 
it,  and  consequently  that  any  accusation  against  General  Hazen 
of  the  character  contained  in  the  libel  of  the  defendant,  and 
which  might  have  been  at  some  time  rumored  about  among  some 
people,  would  be  a sufficient  defence  under  which  to  protect  the 
accused.  Such  is  by  no  means  a just  construction  of  the  lan- 
guage of  the  specification.  The  accused  himself  devised  the 
libel,  and  rumor  is  no  justification  ; but  this  1 shall  have  occa- 
sion to  consider  hereafter.  My  design  now  is  simply  to  say 
that  whatever  rumors  may  have  been  offered  in  proof  as  to 
acts  of  General  Hazen,  there  was  no  statement  or  rumor  what- 
ever that  his  conduct  at  Shiloh  had  ever  been  pronounced  by 
anybody  as  “disgraceful.”  General  McCook  and  other 
officers  testifying  for  the  accused,  stated  that  they  had  seen 
General  Hazen  on  the  day  of  the  battle,  absent  from  his 
brigade.  Bnt  the  distinguished  officer  I have  mentioned  stated 
that  he  had  never  pronounced  an  opinion  upon  his  conduct, 
nor  was  there  one,  of  all  the  witnesses  summoned  by  the  de- 
fence to  bear  testimony  to  this  circumstance,  who  ventured  to 
say  that  he  had  characterized  the  conduct  of  General  Hazen 
by  any  such  term  as  “ disgraceful,”  or  by  any  other  term  de- 
rogatory to  his  character  as  a “ soldier  and  a gentleman. 5 ’ It 
was  left  for  the  accused,  who  was  not  at  the  battle,  to  “ de- 
vise” the  judgment  he  pronounced  when  he  accused  General 


36 


Hazen  of  “ disgraceful  conduct,”  a judgment  which  the  testi- 
mony in  this  case  has  shown  to  be  so  entirely  erroneous  that 
it  can  be  accounted  for  only  upon  the  ground  of  an  unwise  if 
not  an  insane  vindictiveness. 

As  to  the  charge  that  Hazen  was  an  impostor,  that  this  was 
devised  by  the  accused  there  can  be  no  question. 

MISSTATEMENTS  IN  ANOTHER  CHARGE. 

This  analysis  of  the  libel  contained  in  the  first  specification 
is  applicable  to  the  charge  contained  in  the  eleventh  specifica- 
tion, namely,  the  publication  of  the  letter  in  the  St.  Paul 
Pioneer  Press  ; and  I,  therefore,  pass  to  the  libel  contained 
in  the  twelfth  specification,  and  which  will  enlighten  us  as  to 
that  contained  in  both  the  first  and  the  eleventh.  In  this  libel 
the  accused  states  as  follows,  referring  to  General  Hazen  and 
his  friends  at  Washington  : 

“ I don’t  know  what  progress  they  are  making,  but  I do 
know  what  they  are  afraid  of  : that  is,  that  if  his  name  ever 
comes  before  the  United  States  Senate  he  will  meet  charges  of 
perjury  and  cowardice  which  I have  made  to  his  face,  to  the 
newspapers,  and  in  official  statements.  ’ ’ 

The  libel  further  says  : “ General  Stanley  asserts  that  Gen- 
eral Hazen  was  reported  to  him  for  cowardice  at  the  battle  of 
Pickett’s  Mills  and  other  places.  At  that  time  General  Stan- 
ley commanded  the  Fourth  Corps  of  the  Army  of  the  Cumber- 
land, while  General  Hazen  was  in  command  of  a brigade  in 
the  third  division  of  that  corps.” 

I have  already  called  attention  to  the  fact  that  the  statement 
that  General  Stanley  commanded  a corps  at  the  battle  of 
Pickett’s  Mills  was  an  error  of  which  he  complained  to  the 
reporter  after  the  article  appeared,  and  which  was  explained 
in  court  by  him. 

It  is  proper  to  remark  in  this  connection,  however,  that 
the  accused  did  command  the  Fourth  Corps  of  the  Army  of 
the  Cumberland  from  July,  1864,  till  the  summer  of  1865,  and 
that  during  part  of  that  time  G eneral  Hazen  was  an  officer 
serving  in  that  corps  and  under  the  accused,  in  order  to  give 
application  to  the  expression  I have  quoted  from  the  libel, 
that  Hazen  was  reported  to  the  accused  for  cowardice. 


37 


It  is  also  proper  to  remark  in  this  connection  that  F.  L. 
Hosmer  in  his  testimony  says  as  follows  : “ I simply  meant 
that  he  (Hazen)  was  reported  to  him  (Stanley),  and  that  he 
could  take  no  action  in  the  premises  or  he  would  have  done 
so.  I did  not  mean  officially  reported.”  But  it  is  quite  im- 
material whether  the  expression  in  the  libel  meant,  or  was  in- 
tended to  mean,  that  the  report  that  came  to  the  accused  was 
official  or  unofficial.  He  has  published  as  a fact  that  General 
Hazen  was  reported  to  him  for  cowardice  at  Pickett’s  Mills 
and  other  places.  How,  whether  this  report  was  official  or 
unofficial,  it  must  have  been  made  by  some  individual  if  made 
at  all.  But  further  than  this  there  must  have  been  more  than 
one  individual  in  the  general  transactions  referred  to  in  the 
libel,  for  the  report  was  not  only  as  to  conduct  at  Pickett’s 
Mills,  and  not  only  as  to  some  one  other  place,  but  as  to  other 
places.  Who  made  these  reports  to  the  accused  ? Where  is 
the  evidence  ? He  certainly  knows  who  the  individuals  are 
who  made  the  reports  to  him,  if  any  such  exist.  He  has  had 
ample  time  to  get  his  testimony.  The  power  of  the  Govern- 
ment, reaching  on  all  sides  to  the  extreme  limits  of  the  Re- 
public, has  been  at  his  command  to  bring  before  this  court  any 
witness  he  might  desire  to  call.  Where  are  the  individuals 
who  bore  him  the  reports  he  alleges  he  has  received  ? That 
he  has  published  as  a fact  that  reports  thus  injurious  and  dam- 
aging to  General  Hazen  were  made  to  him  is  no  longer  open 
to  question.  The  inquiry  now  is  whether  that  statement  is 
true  or  false.  As  to  this  narrow  question  there  is  no  room  for 
the  defence  that  he  believed  it  to  be  true,  and  had  grounds 
for  such  belief.  He  knows  whether  it  is  true  or  not,  and 
there  are  others,  according  to  his  own  statement,  who  must 
know  the  same  thing.  Where  are  they  ? Why  has  he  not 
called  them  here  ? Why  has  he  willingly  rested  under  the 
imputation  that  the  statement  was  untrue,  unless  he  knew  that 
it  was  untrue  ? 


RECAPITULATION  OF  THE  LIBELS. 

This  analysis  of  the  several  libels  develops  the  following  as 
the  charges  against  General  Hazen  that  have  been  published 
by  the  accused  : 


38 


First.  Perjury  as  a witness  in  the  trial  of  W.  W.  Belknap 
before  the  Senate  of  the  United  States. 

Second.  Cowardice  at  Shiloh. 

Third.  That  he  is  an  impostor. 

Fourth.  That  the  accused  has  charged  him  to  his  face,  in 
the  newspapers,  and  in  official  communications,  with  perjury 
and  cowardice. 

Fifth.  That  he  was  reported  to  the  accused  for  cowardice 
at  Pickett’s  Mills  and  other  places. 

Graver  and  more  serious  accusations  could  not  be  brought 
against  an  officer  of  the  army,  and  the  publication  of  such 
charges,  unless  justified,  is  one  of  the  highest  crimes  known 
in  any  civilized  community,  and  places  the  accuser  and  the 
accused  in  the  attitude  of  meriting  the  severest  penalty  ac- 
cording to  the  determination  which  may  be  reached  as  to 
whether  the  charges  are  true  or  false.  * 

At  common  law  the  criminal  offense  is  complete  by  the 
simple  publication  of  charges  of  so  grave  a nature,  and  the 
truth  is  not  allowed  to  be  given  in  evidence  as  a protection  of 
the  accused.  But  in  this  proceeding,  as  I understand  it,  it 
was  designed  that  the  accused  should  have  the  protection  of 
the  truth  to  its  fullest  extent,  if  he  could  establish  it  in  his 
vindication. 

He  has  availed  himself  of  that  defence,  and  accompanied  it 
with  such  expressions  as  render  the  conclusion  inevitable  that 
his  publications  and  conduct  were  instigated  by  the  most  vin- 
dictive malice,  unless  the  Court  should  believe  that  the  evi- 
dence adduced  clearly  and  distinctly  establishes  the  guilt  of 
General  Hazen  as  to  the  several  matters  charged  against  him 
by  General  Stanley. 

The  accused  in  his  letter  to  General  Sherman,  on  file  in  the 
records  of  this  case,  in  speaking  of  the  libel  set  forth  in  the 
first  specification,  says  : “ I further  avow  that  all  the  sub- 
stance-matter in  the  letter  is  true,  and  therefore  not  libellous. 

I confidently  expect  to  bring  out  such  evidence  in 
my  defence  as  will,  if  it  does  not  wholly  debar  Colonel  Hazen 
from  associating  with  gentlemen,  at  least  close  up  effectively 
all  pretensions  on  his  part  to  honors  or  promotions  in  the 
Army.  ’ ’ 


39 


Now  what  is  the  proof  offered  ? The  testimony  of  General 
Hazen  given  on  the  impeachment  of  W.  W.  Belknap  has  been 
presented  by  the  defence  to  the  Court  as  sustaining  and  justi- 
fying the  charge  of  perjury.  In  the  specifications  under  the 
charges  preferred  by  the  accused  against  General  Hazen,  all 
of  which  relate  to  the  subject  of  the  trial  of  Belknap,  the  tes- 
timony is  unnaturally  torn  one  part  from  another,  and  so  col- 
lated as  to  give  an  incorrect  view  of  what  the  evidence  really 
was.  When  read  together  the  evidence  of  General  Hazen  will 
be  found  entirely  consistent  in  every  part,  and  entirely  in 
harmony  with  the  confidential  letter  he  addressed  to  General 
Belknap  from  Fort,  Buford,  September  12th,  1875.  Accord- 
ing to  the  testimony  of  Mr.  Coburn  and  General  Hazen,  the 
latter  was  summoned  to  Washington  in  1872  to  testify  ip  re- 
gard to  matters  relating  to  the  staff  of  the  Army,  and  he  was 
examined  as  to  post-traderships  in  connection  with  the  duties 
of  the  Commissary  Department  (p.  195).  Previous  to  that 
time  General  Hazen  had  a correspondence  with  General  Gar- 
field, and  inclosed  to  him  a communication  received  from  an 
officer  at  Fort  Sill  disclosing  certain  abuses  in  the  post-trader- 
;Ship  system.  This  letter  from  General  Hazen,  and  its  in- 
closure,  General  Garfield  handed  to  Mr.  Coburn,  the  then 
chairman  of  the  Committee  on  Military  Affairs  in  the  House, 
and  it  was  agreed  between  them  that  General  Hazen’ s name 
should  not  be  mentioned  as  volunteering  statements  about  the 
abuses  of  post-traders.  (See  Coburn’s  testimony,  635  and  636.) 

THE  COMPACT  ABOUT  SECRECY  BEFORE  THE  MILITARY  COMMITTEE. 

General  Flazen  came  on  to  Washington  in  obedience  to  the 
summons  of  the  committee,  having  been  informed  of  this  ar- 
rangement between  Garfield  and  Coburn  that  his  name  should 
not  be  disclosed  as  giving  information  upon  the  subject  referred 
to.  General  Hazen  states  in  his  evidence,  under  oath,  on 
this  trial,  that  in  conversation  with  Mr.  Coburn,  before  testi- 
fying, he  spoke  of  not  having  his  name  disclosed  in  connec- 
tion with  this  matter.  Mr.  Coburn  has  no  recollection  of 
that  conversation,  but  thinks  it  possible  it  may  have  taken 
place,  and  it  is  apparent,  from  the  fact  of  the  arrangement 


40 


between  Mr.  Coburn  and  Mr.  Garfield  to  the  same  effect,  that 
such  a conversation  would  take  place  in  the  ordinary  course  of 
events.  General  Hazen  very  naturally  as  an  officer  of  the 
Army  did  not  wish  to  involve  himself  in  a difficulty  with  the 
Secretary  of  War,  although  he  did  not  at  that  time  certainly 
know  how  deep  and  virtuous  was  the  interest  of  that  high 
functionary  in  the  delicate  subject  with  which  he  was  dealing. 
Being  thus  ignorant  he  was  not  conscious  of  how  wise  his 
course  had  been  in  not  making  a report  on  the  subject  directly 
to  the  Secretary  of  W ar  in  person.  And  it  is  to  such  personal 
report  that  he  refers  in  his  letter  of  September,  1875,  when 
he  says,  ‘ ‘ I had  not  reported  the  matter  to  you.  ’ ’ His  position 
is  well  explained  by  himself  in  the  second  paragraph  of  the 
letter  referred  to  (page  233,  Congressional  Record , offered  in 
evidence).  He  says  as  follows  : “ Seeing  that  we  were  de- 
feated, and  the  Army  again  encumbered  with  the  old  system, 
which  is  nothing  less  than  a system  of  leeches  applied  to  the 
pockets  of  the  Army  (although  personally  the  present  sutlers, 
are  not  objectionable  men),  and  that  the  objections  of  the 
Commissary  Department  would  block  any  action  in  the  mat- 
ter and  defeat  any  attempt  through  the  Army  itself  looking 
toward  correction,  I endeavored  to  call  the  attention  of  Con- 
gress to  the  subject,  through  my  old  friend  and  schoolmate, 
General  Garfield.  I naturally  gave  the  worst  instances  of  the 
workings  of  the  law  I knew  of,  and  these  were  instances  of 
farming  out  licenses  at  heavy  rates,  which  were,  of  course,  a 
tax  to  that  amount  upon  the  garrisons.  ’ ’ 

E.  Y.  Smalley  confirms  what  General  Hazen  states  in  this 
letter  as  to  the  manner  in  which  he  obtained  the  information 
that  formed  the  basis  of  his  article  published  in  The  Tribune 
in  1872.  Although  Hazen  was  ignorant  of  the  Secretary’s 
personal  interest  in  farming  out  licenses,  it  was  perfectly  nat- 
ural, after  the  publication  in  The  Tribune,  that  the  Secretary 
should  feel  indignant,  as  he  says  he  did,  and  that  this  indig- 
nation should  grow  and  develop  in  a manner  he  is  utterly 
unable  to  explain  in  his  testimony. 

The  gravamen  of  the  charge  against  General  Hazen  is  that 
his  testimony,  as  given,  is  in  conflict  wfith  the  letter  referred 
to  ; but  a close  analysis  of  the  two  will  show  plainly  that  no 


n 


such  conflict  exists.  It  is  also  alleged  that  his  statement  to  the 
effect  that  the  Commissary  Department  opposed  and  obstructed 
the  operation  of  the  law  of  1866,  providing  that  that  depart- 
ment should  furnish  soldiers  with  a certain  class  of  stores 
which  had  been  theretofore  provided  by  sutlers,  was  not  well 
founded.  But  one  important  and  controlling  fact  upon  that 
subject  stands  out  to  view — viz.,  that  while  the  Inspector- 
General  of  the  Army,  who  by  the  law  was  required  to  furnish 
the  list  of  stores  to  be  provided  by  the  Commissary  Depart- 
ment, has  invariably  and  faithfully  performed  his  duty  in  that 
regard,  the  law  has  remained  practically  unexecuted.  It  can- 
not be  doubted  for  a moment  but  that  a co-operation  with  the 
Inspector-General  of  the  Army  on  the  part  of  the  Commissary 
Department  would  have  accomplished  the  faithful  execution 
of  the  law.  Independent  of  this  fact,  the  official  records  and 
evidence  before  the  court  show  that  General  Hazen  was  en- 
tirely right  in®his  belief  and  in  his  expressions  of  that  belief. 

GENERAL  HAZEN  AT  SHILOH. 

Much  the  greater  portion  of  the  large  mass  of  evidence  be- 
fore the  court  presented  by  the  accused  relates  to  the  conduct 
of  General  Hazen  at  the  battle  of  Shiloh.  It  appears  from  the 
testimony  of  several  witnesses  that  General  Hazen  was  at  one 
period  of  the  day  absent  from  his  command  at  that  battle,  and 
at  a certain  time,  not  more  definitely  fixed  by  any  of  those 
witnesses  than  about  noon,  was  seen  at  Pittsburg  Landing. 
They  also  represent  that  this  subject  was  commented  upon  or 
spoken  of  at  the  time,  but,  as  I have  before  said,  there  is  not 
one  of  them  who  undertook  to  condemn  General  Hazen  for 
the  act  or  testified  that  others  had  condemned  him.  Further 
than  this  single  fact  the  accused  has  offered  no  evidence  what- 
ever to  sustain  or  justify  his  libel  upon  General  Hazen  in 
which  he  has  charged  him  with  ‘ ‘ disgraceful 5 5 conduct  at  that 
battle. 

How  has  the  Judge  Advocate  met  this  testimony  ? 

He  has  brought  before  the  court  those  officers  of  General 
Hazen ’s  brigade  whose  military  duty  made  it  necessary  that 
they  should  be  with  him,  and  other  distinguished  officers  serv- 


42 


ing  in  his  command  whose  undoubted  courage  and  brave 
achievements  at  that  battle,  and  throughout  the  war,  have 
secured  to  them  a lasting  reputation  in  the  history  of  their 
country.  General  Emerson  Opdycke  testifies  that  with  the 
dawn  of  the  morning  General  Hazen  formed  his  brigade,  led 
it  on  as  the  advance  of  Nelson’s  division,  and  therefore  as  the 
advance  of  the  army,  on  that  famous  field,  pushing  the  enemy 
before  it,  until,  finally  drawn  up  in  one  extended  line  of  battle, 
General  Hazen  gave  the  order  to  charge,  went  forward  with 
his  men  wherever  resistance  was  to  be  encountered  or  danger 
invited  the  soldier.  Finally,  driven  back  by  an  overwhelming 
force,  they  retreated,  whilst  General  Hazen  at  every  step  was 
endeavoring  to  rally  his  men.  The  brigade  was  broken  and 
scattered  in  the  thickly  wooded  country,  dense  with  under- 
growth, and  the  General  and  Opdycke  were  both  lost.  They 
parted  at  one  o’clock.  Opdycke  rejoined  the  colors  of  the 
41st  Ohio  about  an  hour  afterward,  about  which  had  rallied  a 
few  of  his  scattered  regiment. 

Robert  L.  Kimberly,  Acting  Assistant  Adjutant-General, 
bears  testimony  to  the  same  facts  with  Opdycke  up  to  the 
period  when  he  was  wounded  in  the  advance,  which  he  fixes 
at  about  one  o’clock.  W.  M.  Beebe,  an  aide  to  General 
Hazen,  testifies  that  Hazen  called  his  brigade  to  arms  with  the 
first  dawn  of  the  light,  formed  them  in  two  lines  for  the  ad- 
vance, moved  forward  on  the  enemy,  and,  after  some  severe 
fighting,  ordered  a charge  upon  the  Rebel  lines.  Generals 
Buell  and  Nelson  were  at  the  time  this  order  was  given  imme- 
diately in  the  rear  of  the  brigade,  and  some  confusion  in  the 
6th  Kentucky  Regiment  having  occurred,  Captain  Wright,  of 
General  Buell’s  staff,  with  General  Hazen,  rode  to  the  front, 
organized  and  rallied  the  men,  and  General  Hazen  charged 
with  them  upon  the  enemy.  During  the  charge  they  drove 
the  enemy  from  his  guns,  passed  beyond  his  battery,  met  his 
second  line,  when  from  front  and  either  flank  a deadly  fire  was 
poured  upon  the  brigade,  and,  unsupported  and  encountering 
overwhelming  numbers,  they  fell  back  scattered  and  disor- 
dered. General  Hazen  was  there  seen  with  the  men  who  had 
advanced  the  furthest,  and  it  is  proper  to  remark  here  that  this 
point  was  the  furthest  in  the  direction  of  the  enemy’s  lines 


43 


that  had  been  reached  by  any  of  the  Federal  troops  at  this 
time. 

He  accompanied  General  Hazen  in  the  retreat,  and  after 
being  parted  from  the  command  they  became  separated  from 
each  other  by  the  thick  undergrowth.  He  again  saw  General 
Hazen  about  four  o’clock,  when  he  was  in  command  of  his 
brigade.  The  41st  Ohio  and  6tli  Kentucky  were  baoly  broken 
and  scattered,  but  a comparatively  small  portion  of  the  men 
had  gathered  before  nightfall,  and  they  were  coming  in 
throughout  the  night. 

Captain  Charles  D.  Gaylord,  one  the  staff  of  General  Ha- 
zen, tesxified  to  the  forming  of  the  brigade  in  the  morning,  its 
advance,  its  encounters,  its  final  charge,  and  bears  witness 
that  all  the  time  up  to  the  very  last  moment  when  it  had 
passed  beyond  the  enemy’s  batteries  and  been  checked  by  his 
second  line  and  an  enfilading  fire  General  Hazen  was  in  his 
place  cheering  on  his  soldiers,  and  performing  the  duties  of  a 
brave  and  gallant  man  ; and  that  in  the  retreat  he  was  endeav- 
oring to  rally  them  for  another  attack,  inducing  them  to 
stand  wherever  he  could,  although  they  were  pursued  by  a 
deadly  fire.  In  this  retreat,  having  occasion  to  dismount,  he 
lost  sight  of  his  general.  He  saw  him  next  about  four  o’clock 
of  that  same  afternoon,  probably  not  more  than  two  hours 
and  a half  after  he  had  parted  with  him,  when  he  was  again 
with  that  small  portion  of  the  brigade  that  had  rallied,  and 
he  was  then  in  command  of  it. 

Lieutenant  Gross,  of  the  9th  Indiana,  says  that  he  saw  Gen- 
eral Hazen  at  the  furthest  point  reached  in  the  charge  ; that 
his  regiment  went  in  with  450  men,  and  such  was  the  disaster 
and  disorganization  consequent  upon  their  fearful  encounter 
that  there  was  not  left  more  than  from  80  to  125  ; that  the 
41st  Ohio  and  the  6th  Kentucky  were  badly  broken  and  scat- 
tered ; thattlft  men  continued  to  join  the  brigade  during  the 
night,  and  even  the  next  morning. 

These  witnesses  all  concur  in  the  statement  that  the  charge 
was  some  time  after  twelve  o’clock,  the  entire  previous  part  of 
the  day  having  been  occupied  in  fighting  up  to  the  point 
where  this  final  dash  was  made.  The  charge  lasted  probably 
thirty  minutes  or  more.  The  brigade  had  been  decimated. 


44 


With  the  final  charge,  its  work  for  that  day  was  done.  That 
work  had  been  well  and  bravely  done,  under  brave  and  gal- 
lant leadership,  and  he  who  would  soil  the  fair  fame  won  on 
that  bloody  field  deserves  the  reprobabtion  of  every  officer  in 
the  service  of  the  country.  I will  not  speak  of  General  Ha- 
zen’s  own  testimony  accounting  for  his  absence.  The  testi- 
mony of  others  establishes  his  gallantry  on  that  day  so  clearly 
that  it  raises  the  necessary  presumption  that  any  absence 
when  the  fight  was  done  was  the  result  of  inevitable  accident. 
His  own  testimony  accounting  for  this  accident  was  so  di- 
rect, so  calm  and  modest,  that  any  discussion  would  only  be 
calculated  to  lessen  its  legitimate  and  proper  force. 

What  next  shall  I discuss  to  meet  this  rambling  attack  of 
vindictive  malice  upon  a distinguished  soldier  ? 

THE  EVIDENCE  ABOUT  PICKETT’S  MILLS. 

Pickett’s  Mills  follows  Shiloh  naturally  in  the  order  of  the 
charges.  It  was  at  that  battle  also  that  General  Hazen  is 
alleged  to  have  acted  in  a cowardly  manner. 

Robert  L.  Kimberly,  who  was  his  adjutant  at  Shiloh,  was 
the  Lieutenant- Colonel  of  the  41st  Ohio  at  Pickett’s  Mills. 
He  testifies  that  General  Hazen  was  in  his  proper  place.  In- 
deed there  is  no  testimony  to  the  contrary  worthy  of  consid- 
eration in  regard  to  that  battle. 

W.  M.  Beebe,  who  was  on  the  staff  of  General  Hazen  at 
Pickett’s  Mills,  as  he  had  been  at  Shiloh,  testifies  that  the 
brigade  consisted  of  nine  regiments  ; that  during  the  entire 
day  General  Hazen  was  in  his  place  at  a distance  of  fifty  to 
seventy-five  yards  to  the  rear,  where  he  could  see  the  opera- 
tions in  the  field.  The  brigade  was  driven  back  ; General 
Hazen  accompanied  and  re-formed  it.  He  further  says  he 
was  with  the  General  nearly  the  entire  day,  and  was  carrying 
orders  from  him  to  the  right  of  the  brigade,  and  was  never 
longer  absent  from  him  than  was  necessary  to  deliver  the 
order  and  return  to  his  post. 

At  Mission  Ridge,  Robert  L.  Kimberly,  the  Adjutant- Gen- 
eral at  Shiloh,  was  Colonel  of  the  41st  Ohio.  He  testifies  that 
at  the  signal  of  six  guns  the  whole  line  advanced  to  the  foot  of 


45 


the  ridge  and  attacked  the  rifle  pits  of  the  enemy,  rested  for 
a few  moments  in  the  shelter  of  the  abandoned  pits,  and  then, 
under  the  order  of  Hazen,  shouted  repeatedly  along  the  line, 
scaled  the  ridge.  It  is  proper  here  to  remark  that  General 
Hazen,  in  his  letter  to  Lossing  the  historian,  gives  to  his  bri- 
gade the  credit  of  that  dashing  movement,  and  says  in  sub- 
stance that  his  order  to  advance  w'as  only  in  response  to  that 
enthusiasm  which  had  impelled  them  forward  before  the  order 
was  given.  Kimberly  says  that  this  brigade  was  the  first  to 
reach  the  crest  of  the  ridge,  where  they  found  a number  of 
guns  from  which  they  drove  the  enemy.  The  enemy  re- 
mained at  the  guns  until  the  brigade  got  within  fifty  paces  of 
his  breastworks,  and  finding  one  of  the  guns  still  loaded,  it 
was  trained  to  point  along  the  crest  of  the  ridge,  and  fired  by 
some  of  Hazen’s  command.  Hazen  was  there  present  with 
the  first  that  reached  the  guns.  Some  question  has  arisen  as  to 
who  captured  those  particular  guns.  If  Colonel  Kimberly  is 
to  be  believed  (and  no  one  questions  his  veracity  or  his  honor), 
the  men  of  Hazen’s  regiment  found  the  enemy  in  their  posses- 
sion and  drove  him  away  ; consequently  if  he  had  been  driven 
away  before  he  must  have  regained  his  lost  possession — hardly 
a probable  supposition.  Overwhelming  testimony  in  confir- 
mation of  Kimberly’s  statement  would  have  been  offered  had 
not  the  Court,  deeming  the  evidence  on  this  and  kindred  sub- 
jects amply  sufficient,  declined  to  hear  further  testimony. 

THE  STONE  RIVER  MONUMENT. 

The  most  extraordinary  feature  of  this  case  is  the  claim  set 
up  by  the  accused  in  reference  to  the  location  of  the  monu- 
ment erected  at  Stone  River,  to  the  memory  of  the  soldiers  of 
Hazen’s  brigade,  on  the  spot  where  they  fell.  The  evidence 
upon  this  subject  was  introduced  by  the  accused  under  the  asser- 
tion that  he  would  show  a fact  which  would  justify  him  for  hav- 
ing, in  the  libels  complained  of,  made  the  charge  against  General 
Hazen  of  being  an  impostor.  The  counsel  of  the  accused  in 
this  first  instance  stated  the  object  of  the  evidence,  but  the  ac- 
cused, apparently  not  satisfied  with  so  modest  a presentation 
of  his  claim,  rose  in  court,  and  said  (p.  251)  : “ Ho,  let  me 


46 


state  it.  I am  accused,  and  one  of  the  serious  accusations 
agairnt  me  is  of  accusing  General  Hazen  of  being  an  impostor. 
There  are  impostors  for  a month  and  there  are  impostors  whose 
impositions  will  last  to  all  eternity.  The  man  who  builds  a 
monument  to  commemorate  a falsehood  is  the  greatest  im- 
postor the  world  can  conceive  of.  We  wish  to  show  why  this 
monument  was  raised,  and  we  want  to  show  the  imposture  of 
it.  The  inscription  to  which  we  want  to  call  attention  is  this 
on  the  east  side  : ‘ Erected,  1863,  upon  the  ground  where  they 
fell,  by  their  comrades.’  ” I have  quoted  this  language  of  the 
accused  in  order  that  he  might  have  the  full  benefit  of  the 
position  he  has  assumed,  and  at  the  same  time  that  he  might 
not  escape  the  responsibility  of  the  attitude  in  which  he  has 
placed  himself.  A man  who  erects  a monument  to  perpetuate 
a falsehood  may  be,  according  to  the  definition  of  the  accused, 
an  impostor.  But  he  that  would  attempt  to  tear  down  by  a 
libel  upon  both  the  dead  and  the  living  that  which  has  been 
erected  by  the  survivors  a memorial  to  perpetuate  the  glory 
of  their  comrades  who  fell  in  battle  is  worse  than  an  ‘ ‘ im- 
postor. ’ ’ 

The  accused  has  presented  the  issue  plainly,  and  he  has  at- 
tempted to  sustain  his  assertion  by  the  testimony  of  General 
Wood  that  the  monument  is  not  erected  upon  the  exact  spot 
where  the  dead  of  Hazen’s  brigade  fell  on  that  bloody  day  ; but 
all  that  this  witness  could  say  who  was  there  upon  the  field  of 
battle,  was,  that  he  did  not  believe  that  the  monument  was  on 
the  spot  occupied  by  the  brigade  in  question,  although  he  did 
not  positively  know  that  it  was  not.  Subsequent  testimony 
plainly  shows  that  General  Wood,  brave  and  efficient  offi- 
cer as  he  may  be,  was  somewhat  confused  in  his  ideas 
as  to  the  location  of  troops  and  the  happening  of  transac- 
tions on  that  day.  Colonel  Kimberly,  who  at  Stone  River 
occupied  the  same  position  that  he  did  at  Shiloh,  of  Adjutant- 
General  to  General  Hazen,  testifies  that  the  monument 
is  on  the  identical  ground  occupied  by  Hazen’s  brigade. 
Captain  Beebe,  who  was  on  General  Hazen’s  staff,  testifies 
emphatically  to  the  same  effect.  He  says  that  early  in  the 
morning  General  Hazen  ordered  him  to  ride  in  the  direction 
from  which  there  came  the  sound  of  heavy  firing,  and  to  as- 


47 


certain  the  cause  and  to  report  to  him.  When  he  returned  and 
reported  he  found  that  the  brigade  had  moved  across  the 
turnpike,  and  was  resting  between  the  turnpike  and  the  rail- 
road, with  its  right  on  the  turnpike  and  its  left  on  the  rail- 
road ; that  it  continued  to  occupy  that  line  between  the  turn- 
pike and  the  railroad  until  the  enemy  made  his  appearance 
upon  the  flank.  Change  of  front  to  rear  on  the  left  subdivi- 
sion was  ordered,  which  carried  the  brigade  facing  at  right 
angles  to  its  former  position  and  behind  the  railroad  embank- 
ment. At  that  point  he  was  wounded.  “ The  monument  is 
built,”  he  continues,  “ on  the  ground  occupied  by  the  bri- 
gade at  that  time,  and  in  that  position  between  the  turnpike 
and  the  railroad  where  the  monument  stands  the  brigade  lost 
the  most  of  its  men.”  But  if  any  further  evidence  were 
needed  to  establish  the  truth  of  the  inscription  upon  this  mon- 
ument erected  to  commemorate  the  deeds  of  the  gallant  dead, 
and  thereby  stimulate  the  living  to  rival  their  glory,  it  is  fur- 
nished in  the  testimony  of  that  accomplished  soldier  and 
highly  distinguished  citizen,  General  John  M.  Palmer.  He 
says  that  observing  the  gallant  fight  of  Hazen’s  brigade,  he 
rode  up  to  them,  and  during  a lull  in  the  battle  thanked  the 
41st  Ohio  for  their  conduct.  u That  regiment,”  he  says, 
“ was  under  the  more  immediate  supervision  of  General  Ha- 
zen.  They  were  holding  the  most  important  position,  the 
maintenance  of  which  was  necessary  to  the  preservation  of  the 
army.”  General  Palmer  says,  “ The  killed  and  wounded 
were  strewn  thickly  around.  ‘I  recollect  very  well  seeing 
Beebe,  of  Hazen’s  staff,  wounded  near  the  railroad  ;”  and  he 
continues,  “ The  point  of  which  I speak  was  between  the  rail- 
road and  the  pike.  I cannot  speak  accurately  as  to  the  loca- 
tion of  the  monument,  but  this  I know,  it  is  nearer  the  posi- 
tion occupied  by  Hazen’s  bridgade  than  to  the  position  occu- 
pied by  any  other  troops  I saw  on  that  field.  It  is  just  in 
front,  I think,  of  where  the  line  formed  during  the  real  strug- 
gle.” 

How  then  stands  the  issue  the  accused  has  made  as  to  the 
truth  or  falsehood  of  the  inscription  on  that  monument  ? 

Now  the  evidence  of^  the  falsity  of  that  inscription  is  the 
only  evidence  he  has  offered  to  justify  or  excuse  the  libel  he 


48 


has  published  upon  his  brother  solider,  denouncing  him  to  the 
world  as  an  impostor. 

The  shelter  of  the  truth  under  which  the  accused  has  sought 
protection  for  the  libels  he  has  published  having  been  torn 
down  and  demolished  by  even  the  limited  amount  of  evidence 
allowed  to  be  introduced  to  rebut  his  case,  his  counsel  seek  to 
defend  him  upon  the  ground,  to  use  his  own  language,  that  if 
he  “ in  good  faith  and  without  malice  made  these  charges, 
having  good  and  substantial  reason  for  believing  what  he  said” 
(p.  481),  then  the  accused  is  entitled  to  acquittal,  although  the 
charges  may  be  false. 

THE  FUTILE  PLEA  OF  GOOD  FAITH. 

In  regard  to  the  defence  just  indicated,  it  is  proper  to  re- 
mark that  no  evidence  whatever  has  been  offered  showing 
that  any  statement  made  by  any  person  derogatory  to  General 
Hazen  has  ever  reached  the  ears  of  the  accused.  And  it 
seems  a mockery  of  the  term,  in  view  of  the  testimony  in  the 
case,  even  to  aver  a pretence  that  he  acted  “ in  good  faith.” 
Good  faith  don’t  mean  whimsical  belief  ; it  don’t  mean  sus- 
picion, colored  by  malice  ; it  means  the  honest  conviction  of 
an  honest  mind,  honestly  desiring  to  know  the  truth.  Now, 
before  the  accused  published  his  first  libel  charging  General 
Hazen  with  cowardice  at  Shiloh,  he  had  before  him  the  writ- 
ten statement  of  General  Emerson  Opdycke,  as  honorable  a 
man  as  ever  lived,  informing  him  that  he,  Opdycke,  of  his 
own  personal  knowledge,  knew  that  Hazen’s  conduct  at  Shiloh 
was  that  of  a gallant  solider,  and  was  without  reproach.  Why 
did  he  not  give  credit  to  this  statement,  and  if  he  did  not 
choose  to  give  credit  to  it,  why  hasn’t  he  out  of  all  the  army  of 
the  United  States,  that  survived  that  day,  brought  some  one 
here  to  prove  that  he  had  told  hinqa  different  story,  and  im- 
pressed upon  his  mind  a conviction  that  Opdycke ’s  statement 
was  not  true  ? 

And  as  I have  asked  before,  I ask  again,  if  anybody  ever 
reported  Hazen  to  him  officially  or  otherwise  for  cowardice 
at  Pickett’s  Mills  or  anywhere  else,  why  has  he  not  brought 
that  man  here  to  testify  ? And  why  has  not  he  consulted  the 


49 


records  of  the  department  in  which  are  the  reports  of  com- 
manding and  subordinate  officers  alike,  out  of  which  are  made 
the  history  of  the  country  ? And  if  he  has  searched  these 
records  and  found  anything  in  them  to  justify  the  belief  he 
has  expressed  and  vindicate  his  claim  to  the  44  good  faith”  as- 
serted for  him,  why  has  he  /not  brought  that  record  here  and 
produced  it  before  this  Court  ? When  those  records  were 
offered  by  the  Judge- Advocate  and  their  admissibility  claimed 
upon  the  ground  that  it  was  testimony  44  accessible  to  the  ac- 
cused,” and  that  he  ought  to  have  examined  them,  his  counsel 
promptly  replied  that  he  had  examined  them,  and  proposed  to 
show  that  those  records  were  not  correct.  Can  the  plea  of 
4 4 good  faith”  so  extend  itself  as  to  meet  a case  like  this  ? 

But,  says  the  counsel  of  the  accused,  laying  down  the  law, 
and  I accept  it,  44  there  must  not  only  be  good  faith  in  the 
accused,  but  he  must  have  had  good  and  substantial  reasons 
to  believe  the  truth  of  the  charges  that  he  made.”  Had  he 
good  grounds  to  believe  that  this  distinguished  officer,  who 
had  gone  through  the  war,  and  of  whose  record  this  Court 
will  take  judicial  cognizance  as  it  is  written  in  the  history  of 
the  country,  had  really  been  guilty  of  cowardice  at  Shiloh, 
Pickett’s  Mills,  and  other  places  ? Was  he  deaf  to  the  honest 
fame  that  the  object  of  his  animosity  had  achieved  at  Chatta- 
nooga, Chickamauga,  in  East  Tennessee,  and  the  Atlanta  cam- 
paign, at  Jonesboro,  McAllisters  and  Bentonville,  or  did  his 
undisciplined  spirit,  filled  with  malignity,  turn  a deaf  ear  to 
all  that  was  good  and  kindly  and  brave  and  generous,  but 
catch  with  the  sensitive  hearing  of  animosity  every  breath  of 
evil,  however  putrid  the  atmosphere  in  which  it  stirred  ? As 
an  essential  element  of  his  vindication  his  counsel  has  stated 
that  there  must  not  only  be  44  good  faith”  in  him,  and  that  he 
must  not  only  have  had  good  and  substantial  reasons  for  be- 
lieving that  the  charges  he  made  were  true,  but  that. he  must 
also  have  been  without  malice  in  making  them.  Unfortu- 
nately for  him,  the  case  furnishes  conclusive  evidence  of  the 
most  vindictive  malice. 

4 


50 


GENERAL  STANLEY^  PERSISTENT  MALICE. 

It  is  a settled  principle  of  law  that  yon  may  find  malice  in 
the  libel  itself,  and  we  know  that  modes  of  expression,  and 
especially  needless  repetitions  of  defamatory  charges,  compel 
ns  to  the  conviction  that  vindictiveness  and  animosity  stimu- 
late the  accused.  The  accused  in  this  case,  in  September  of 
1877,  addresses  a libellous  communication  to  General  Hazen 
at  Vienna.  This  alone,  according  to  the  criminal  law,  was 
sufficient  publication.  Shortly  afterwards  he  exhibits  it  to 
General  Belknap  and  gives  him  a copy,  which  is  industriously 
circulated.  In  the  following  December  this  same  communi- 
cation  very  slightly  modified  appears  in  a public  journal  of  this 
country.  In  March  of  the  present  year  he  publishes  by  pro- 
curement similar  defamatory  statements  in  reference  to  Gen- 
eral Hazen  in  one  of  the  leading  journals  of  the  United  States. 
Why  was  this  ? What  was  his  motive  ? Can  any  one  acquaint- 
ed with  human  nature  assign  any  other  cause  for  it  than  the 
vicious  influence  of  those  sentiments  which  men  call  vindic- 
tiveness and  malice  ? But  the  extraneous  evidence  strengthens 
the  conclusion  that  these  were  the  sentiments  by  which  he 
was  impelled.  In  his  conversation  with  General  McCook  in 
this  city  some  years  since,  he  speaks  of  General  Hazen  in 
terms  of  severity.  In  another  conversation  with  General 
Wood  and  Colonel  Steele  at  the  Centennial,  in  1876,  he  speaks 
of  General  Hazen  in  the  most  defamatory  and  abusive  terms, 
and  declares  it  to  be  his  purpose  to  arrest  his  career. 

THE  HONOR  OF  THE  ARMY  IN  QUESTION. 

The  counsel  for  the  accused  has  during  the  progress  of  the 
trial  repeatedly  urged  upon  the  Court  that  this  case  should  in 
no  way  be  regarded  as  one  in  which,  by  the  judgment  to  be 
pronounced,  General  Hazen  should  obtain  any  vindication  of 
his  injured  character.  I am  not  very  familiar  with  military 
jurisprudence,  but  it  seems  to  me  that  General  Hazen’s  char- 
acter is  not  only  at  issue  in  this  case,  but  that  to  a greater  or 
less  extent  the  character  of  the  Army  of  the  United  States  and 


51 


of  its  system  of  j urisprudence  are  also  at  issue,  as  well  as  the 
guilt  or  innocence  of  the  accused.  If  there  is  any  class  of  men 
in  our  country  with  whom  principles  of  honor  should  be  re- 
garded as  more  obligatory  than  mandates  of  law,  it  is  that 
class  known  as  the  Army  of  the  United  States  : if  there  is  any 
class  of  men  among  whom  unfounded  defamatory  and  injur- 
ious accusations  can  work  mischief  to  individuals  and  detri- 
ment to  the  public  service,  it  is  the  Army  of  the  United 
States.  Within  itself,  according  to  the  order  of  priority,  ready 
obedience  is  essential  and  personal  respect  is  necessary  to  a 
cheerful  subordination.  In  its  relation  to  the  private  citizen 
its  officers  are  seldom  permitted  to  reside  sufficiently  long  in 
any  one  locality  to  establish  upon  a solid  basis  an  individual 
and  personal  character  among  the  people.  They  are  accepted 
everywhere  as  gentlemen  by  reason  of  their  position  in  the  ser- 
vice of  their  country.  Whether,  therefore,  we  regard  the 
officers  of  the  army  in  their  relations  to  one  another,  or  in 
their  relations  to  civilians,  you  cannot  fail  to  appreciate  that 
disastrous  consequences  must  follow  unjust  aspersions,  and 
consequently  you  cannot  hesitate  to  recognize  that  the  dignity 
of  your  serivce  may  sometimes  require  severe  though  painful 
remedies. 


CONCLUSION. 

The  learned  counsel  for  the  accused  seems  to  have  some  the- 
ory, which  I confess  I am  unable  to  understand,  as  to  the  right 
of  officers  of  the  army  to  be  exempt  from  those  rules  of  pre- 
sumptive evidence  which  are  applied  to  the  acts  of  ordinary 
men.  His  own  ideas  on  the  subject  are  apparently  not  per- 
fectly clear.  He  maintains  that  every  officer  must  be  pre- 
sumed to  be  a gentleman,  therefore  that  whatever  he  does 
must  be  presumed  to  be  right.  This  is  the  substance  of  his 
theory,  and  supposing,  in  deference  to  him,  there  may  be 
some  ground  for  the  rule  he  has  laid  down,  how  does  it 
apply  to  a case  between  two  persons  both  of  whom  are  officers 
and  in  which  one  of  them  must  necessarily  be  wrong?  The 
rule  must  operate  equally  and  alike  as  to  all  who  are  members 
of  the  exceptional  class.  If,  therefore,  a charge  should  be 
made  against  an  officer  that  he  published  an  accusation  of  in- 


famous  conduct  against  another  officer,  the  presumption 
would  be  that  the  charge  of  having  made  such  a publication 
was  false.  But  if  it  should  be  established  by  the  evidence  that 
he  had  made  such  a publication,  then  the  presumption  would 
be  that  the  accusation  was  false.  It  will  be  thus  seen  that  the 
rule  of  presumption  would  operate  equally  in  favor  of  the  one 
and  the  other,  according  to  their  respective  relations  to  the 
acts  done.  The  extraordinary  paper  signed  by  the  accused  and 
read  by  his  counsel  as  his  defence,  confirms  every  word  that  I 
have  said  in  reference  to  his  deep,  vindictive,  and  aggressive 
malice.  In  that  paper  he  not  only  reaffirms  his  conviction 
of  the  truth  of  the  defamatory  charges  he  has  heretofore  made 
against  General  Hazen,  but  apparently  defies  the  Court  to 
convict  him,  notwithstanding  the  evidence  adduced,  and  an- 
nounces his  purpose  to  act  toward  any  other  officer  whose 
character  and  conduct  do  not  meet  his  notions  of  what  they 
ought  to  be  in  the  same  manner  in  which  he  has  acted  toward 
General  Hazen.  If  this  Court  thinks  he  should  go  forth  to 
purify  and  purge  the  Army  of  the  United  States  in  the  exercise 
of  undisciplined  passion,  he  certainly  should  be  allowed  a char- 
ter for  that  purpose  in  a judgment  of  acquittal. 

But  this  paper  in  its  relation  to  the  case  contains  a yet  more 
serious  statement,  and  solemnly  asserts  that  there  is  now  on 
file  in  the  department  at  Washington  an  application  by  Gen- 
eral Hazen  that  he  should  be  appointed  Quartermaster- Gen- 
eral. Is  it  in  accordance  with  the  proprieties  of  this  trial  and 
consistent  with  the  dignity  of  this  Court  that  such  a statement 
should  be  made  at  this  stage  of  the  proceedings  ? If  such  an 
application  is  on  file  in  Washington,  why  did  not  the  accused 
produce  a certified  copy  of  it  as  evidence  in  the  case  ? Why 
did  he  wait  to  make  such  an  accusation  until  presenting  his 
argument  in  defence,  when,  to  the  reason  of  any  thinking 
man,  it  can  have  no  other  effect  than  to  excite  the  belief  that 
he  is  endeavoring  to  delude  the  Court  by  the  assertion  of  that 
which  he  did  not  dare  to  assert  under  oath,  and  which  he 
knew  he  could  not  establish  by  proof  ? This  extraordinary 
statement  can  only  be  accounted  for  on  the  ground  that  his 
vindictiveness  has  entirely  overcome  his  prudence  and  subju- 
gated his  understanding.  But  something  further  must  be  said, 


53 


as  due  to  public  justice  and  to  honor  and  truth.  I am  author- 
ized to  state  on  behalf  of  General  Hazen  that  no  such  applica- 
tion has  ever  been  made  or  filed  by  him  or  by  his  authority  or 
with  his  connivance,  consent,  or  knowledge,  and,  so  far  as  he 
knows,  the  statement  that  any  such  application  is  now  or  ever 
was  on  file  in  the  department  at  Washington  or  elsewhere,  is 
, unfounded  and  untrue. 

Respectfully  asking  from  the’  Court  that  it  will  seriously 
consider  how  far  officers  of  the  United  States  Army  are  to  be 
protected  and  justified,  under  our  system  of  military  jurispru- 
dence, in  adopting  athe  methods  pursued  by  General  [Stanley 
in  libelling  and  defaming  one  another,  and  whether  these 
methods  are  in  harmony  with  the  principles  of  right,  justice, 
and  honor  that  distinguish  the  profession  of  the  soldier,  I sub- 
mit the  case. 


